Opinion
00 Civ. 7870 (GEL)
February 26, 2002
Michael D. Hess, New York, New York for Plaintiff Board of Education of the City School District of New York
Phroska L. McAlister, New York, New York, for Defendant Ellie Gustafson, mother of Roy "G." a minor child
OPINION AND ORDER
The Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq. (1997), requires states to make available a "free appropriate public education . . . to all children with disabilities." § 1412(a)(1)(A). Where a public school system fails to provide an appropriate public education for a disabled child, his or her parent may place the child in a private school and seek reimbursement. § 1412(a)(10)(C). Ellie Gustafson, the defendant in this case, did exactly that. An Impartial Hearing Officer ("IHO") of the State Education Department ordered the Board of Education of the City School District of the City of New York ("Board") to reimburse Gustafson for only 20% of the private school's tuition, but on appellate review, the State Review Officer ("SRO") overturned the IHO's decision, and directed the Board to reimburse the defendant for the full tuition for the 1998-1999 school year. The Board then brought this action, asking this Court in turn to reverse the SRO and reinstate the IHO's decision that a more limited reimbursement is appropriate. Defendant requests that we affirm the SRO's decision.
Both parties have moved for summary judgment. For the reasons set forth below, the Board's motion is denied, Gustafson's motion is granted, and the SRO's decision is affirmed.
BACKGROUND
I. Factual Background
Roy Gustafson was born on September 6, 1981. (Pl.'s R. 56.1 Statement ¶ 1.) He attended public school from kindergarten until the middle of his ninth grade year in 1995. (Id. ¶¶ 1-5; Greenfield Decl. Ex. 3 at 2-3.) During seventh and eighth grade at Wagner Junior High School, Roy experienced "academic and emotional problems." (Greenfield Decl. Ex. 3 at 2.) As a result of these difficulties, he was referred to the Central Based Support Team, and in February 1994, the Committee on Special Education ("CSE") classified Roy as learning disabled. (Pl.'s R. 56.1 Statement ¶ 3.) The CSE recommended that Roy receive resource room services. (Id.) In 1995, the Board placed Roy in the ninth grade at High School of Economics and Finance where he continued to experience "substantial academic and emotional problems." (Greenfield Decl. Ex. 3 at 2.)
In December of that year, Ellie Gustafson, Roy's mother, decided that the placement was inappropriate and unilaterally moved her son to the Gow School, a private, residential school for students with special educational needs. (Def's R. 56.1 Statement ¶ 5.) Roy continued to attend private school until the end of high school, because defendant felt that the Board failed to provide free appropriate public education. (Def's Mem. Supp Summ. J. at 3-4) Roy stayed at the Gow school through the 1996-1997 school year. (Def's R. 56.1 Statement ¶ 5.) For the 1997-1998 school year, defendant moved him to York Preparatory School, a non-state-approved, private school in New York. (Pl's R. 56.1 Statement ¶ 6; Greenfield Decl. Ex. 3 at 2.) Roy continued to attend York Prep during the 1998-1999 school year. (Greenfield Decl. Ex. 3 at 2.) Pursuant to stipulations of settlement, plaintiff provided hill tuition reimbursement for the 1996-1997 and 1997-1998 school years. (McAlister Aff. Exs. A, B.) This case deals with tuition reimbursement for the 1998-1999 school year.
II. Statutory Framework
IDEA requires states to make available a "free appropriate public education . . . to all children with disabilities." § 1412(a)(1)(A). In order to determine what services are necessary, the school district puts together an "individualized education program [`IEP'] . . . for each child with a disability." § 1412(a)(4). If a parent feels that the IEP does not meet the child's needs and that the school authorities have failed to provide a free appropriate public education, the parent can place the child in a private school and then seek reimbursement. See § 1412(a)(10)(C); Sch. Comm. of the Town of Burlington v. Dept. of Educ. of Mass., 471 U.S. 359, 369-70 (1985). Reimbursement may be ordered even if the private school is not approved by the Education Department as a school for children with disabilities. Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 13 (1993).
However, "parents who unilaterally change their child's placement during the pendency of review proceedings, without the consent of state or local school officials, do so at their own financial risk."Burlington, 471 U.S. at 373-74. Tuition reimbursement will be granted only when the "private placement desired by the parents was proper under the Act and . . . [the] IEP calling for placement in a public school was inappropriate." Id. at 370. The power to grant "retroactive reimbursement" is equitable. Florence County, 510 U.S. at 12 (discussing the holding in Burlington). In fashioning relief, the court "enjoys `broad discretion,'" and "must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required." Id. at 16. Reimbursement "merely requires the [Board] to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper IEP." Burlington, 471 U.S. at 370-71. Moreover, the right to reimbursement is not automatic or open-ended. The amount of reimbursement is within the Court's equitable discretion, and "[t]otal reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable." Florence County, 510 U.S. at 16.
III. Procedural Background
Gustafson sought reimbursement for the 1998-1999 school year through the administrative process. The IHO found that the IEP developed by the Board was inappropriate (Greenfield Decl. Ex. 3 at 8), and that Roy's placement at York was appropriate (id. at 9). Nevertheless, the IHO decided that Gustafson should be reimbursed for only 20% of the tuition costs. (Id. at 11.) In arriving at this percentage, the IHO stated that "equitable reimbursement should reflect the nature and cost of privately obtained services." (Id.) He noted the following: "The Board of Education recommended one period of resource room services per day. At York Prep, the student is receiving instruction in four academic subjects and one non-academic subject per day and he receives some unspecified amount of consultant teacher type services in all of his academic subjects." (Id. (internal citations to record omitted).) He concluded that "the cost of the special education services at York Prep can be equitably estimated at the cost of one period of instruction," or 20% of tuition. (Id.)
Gustafson appealed to the SRO, who reversed the IHO's decision and concluded that full tuition reimbursement was equitable. (Greenfield Decl. Ex. 6 ("SRO Op.") at 6-7.) The SRO agreed that Roy "did not require [or receive] a full-time special education program." (Id. at 6.) He also noted that limiting reimbursement to a certain percentage "may be appropriate when the specialized instruction which is provided to a child in a private school can be attributed to a specific school program." (Id. at 6-7 (citing SRO Appeal No. 99-28).) He found, however, that since in this case "the specialized techniques were used . . . throughout the school day in the boy's four academic subjects," it was "not possible on the record . . . to calculate the fair value of the specialized assistance which York provided." (Id. at 7.) The SRO concluded that the Board bears the "burden to show that the amount of tuition sought by a parent is excessive." (Id. (citing Appeals Nos. 96-11, 97-10).)
The Board filed this action appealing the SRO's decision, objecting to the determination, and more specifically contesting the SRO's conclusion that the burden of proof as to the excessiveness of the tuition reimbursement falls on them.
DISCUSSION
I. Standard of Review
After proceeding through the administrative appeals process, "[a]ny party aggrieved by the findings and decision . . . shall have the right to bring a civil action with respect to the complaint presented pursuant to this section, which action may be brought . . . in a district court of the United States." § 1415(i)(2)(A). In such an action, the court, "(i) shall receive the records of the administrative proceedings; (ii) shall hear additional evidence at the request of a party; and (iii) basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate." § 1415(i)(2)(B).
In this case, neither party seeks to submit additional evidence, both agree that the decision can be rendered on the record established in the administrative proceedings. (12/7/01 Tr. at 24.) Moreover, there is no dispute that the IEP was inappropriate under IDEA (Pl.'s Mem. Supp. Summ. J. at 9, n. 2 (noting "Board's agreement that the student was not appropriately grouped in the resource room setting")), and that York Prep's services provided a proper substitute (id. at 12; Def's Mem Supp. Summ. J. at 7). Thus, the only issue dividing the parties is whether equitable considerations merit limiting tuition reimbursement at a percentage reflecting the amount of special services received.
In providing review by the courts, IDEA "`by no means [extends] an invitation to the courts to substitute their own notions of sound education policy for those of the school authorities which they review.'"M.S. v. Bd. of Educ. of the City Sch. Dist. of the City of Yonkers, 231 F.3d 96, 102 (2d Cir. 2000) (quoting Board of Educ. v. Rowley, 458 U.S. 176, 206 (1982)). A court must "give `due weight' to these [administrative] proceedings, mindful that the judiciary generally `lacks the specialized knowledge and experience necessary to resolve persistent and difficult questions of educational policy.'" Id. (quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998) (citations from Walczak omitted). Deference to the SRO would be appropriate, for example, on "assessment[s] of educational progress" or "the formulation of educational programs." Id. at 105. At the same time, it is clear that the Act contemplates that the Court will exercise its independent equitable power to "grant such relief as the court determines is appropriate." § 1415(i)(2)(B). In other words, while required to defer to the state authority's educational judgments, the Court is not limited merely to reviewing the reasoning of the agency decisionmakers, and remanding for further proceedings if it finds legal flaws in that reasoning. As the Board concedes, the Court's review, though deferential, is de novo. (Pl's Mem. Supp. Summ. J. at 4, see, e.g., Muller v. Comm. of Special Educ. of the East Islip Union Free Sch. Dist., 145 F.3d 95, 102 (2d Cir. 1998) (concluding that the district court "was free to consider the issue of [the student's] statutory eligibility de novo" because state administrative officials "were in no better position than the district court to make conclusions" with respect to that issue).)
II. Equitable Determination of Reimbursement
The Board argues that this case presents the purely legal question of whether "a placement which provides less intensive services dispersed throughout the day must receive full tuition reimbursement if the Board cannot prove that the tuition is excessive." (Pl.'s Mem. Supp. Summ. J. at 1-2.) During oral argument, the Board rephrased this issue as who bears the burden of proving whether the private school tuition is excessive given the services received. (12/7/01 Tr. at 15.) Plaintiff claims that the SRO incorrectly placed the burden on the Board. (Pl.'s Mem. Supp. Summ. J. at 10.) Interpreting this burden as a requirement that they "present evidence to establish the fair value of the special education services" (id.), the Board argues that placing the burden on them is "not reflected in the law" (12/7/01 Tr. at 7), and that putting the burden on the parent is supported by cases requiring parents to show the appropriateness of the placement. (Pl.'s Mem. Supp. Summ. J. at 8 n. 1 (`This is consistent with the doctrine long recognized by the courts that when moving for an equitable remedy, the burden of proof is on those seeking equitable relief') (citations omitted).)
Contrary to the Board's contentions, however, it is neither necessary nor desirable for this Court to address abstract legal questions about burden of proof in order to resolve this case. The focus on the burden of proof comes from one line of the SRO's decision stating that "It is respondent's burden to show that the amount of tuition sought by a parent is excessive." (SRO Op. at 7 (citing Appeals Nos. 96-11, 97-10, decisions by the same SRO in other disputes).) This comment, however, must be taken in context. Before making this statement, the SRO made a careful assessment of the facts found by the IHO, and set out a rationale for rejecting the Board's position that does not turn on technical considerations of burden of proof:
Although I concur with the hearing officer's determination that petitioner's son did not require a full-time special education program, and that the boy was in fact not receiving such a program at York, I nevertheless cannot agree with his determination to limit petitioner's recovery to 20% of the frill tuition at York. Such an award may be appropriate when the specialized instruction which is provided to a child in a private school can be attributed to a specific school program. . . . In this instance, the specialized techniques were used to improve his writing and spelling throughout the school day in the boy's four academic subjects. It is not possible on the record before me to calculate the fair value of the specialized assistance which York provided to the boy.
(Id. at 6-7.)
The Court agrees with the SRO's analysis. As noted above, the parties agree that Gustafson adequately proved that the Board's IEP was inadequate to satisfy the requirement of IDEA that her son be provided with a free public education appropriate to his disabilities, and that the program at York, unlike that proffered by the Board, did appropriately serve his needs. The question before the SRO, and before the Court, is whether equitable considerations warrant an award of less than full reimbursement because the cost of those services was "unreasonable."Florence County, 510 U.S. at 15. Regardless of who bears the burden of persuasion on this issue, the Court agrees with the SRO that on this record full reimbursement is not unreasonable.
In what is clearly an educational judgment to which the Court must defer, the SRO determined that York had provided Roy with a program in which services analogous to "consultant teacher services" tailored his instruction and provided structured assistance by means of "specialized techniques" applied "throughout the school day." SRO Op. at 5-6, 7. Nothing in the record, or in the Court's experience, suggests that such pervasive application of specialized teaching techniques adjusted to a particular child's needs can be obtained on the market as a package that could be severed from the full educational program of the private school, purchased by Gustafson, and applied to supplement the Board's inadequate educational program. Nor is there any indication in the record, or even any argument by the Board, that York's tuition was excessive or unreasonable for the full instructional program it offered.
Under these circumstances, equity requires that Gustafson be fully reimbursed for her expenses. So far as this record reflects, she did not have an option of purchasing — at 20% of the total cost of York's tuition or at any other price — a package of supplemental techniques that could be dropped into the Board's public school program to render it appropriate for her son's needs. Rather, her options were to leave her son in an inappropriate public school placement or to seek a private school that would make available the supplementary services that the Board now concedes were appropriate, paying the market rate in New York for such education. Any parent who could finance the latter choice would surely take it. There was nothing unreasonable about either Gustafson's choice or the price she was charged by York. of course, if the Board had provided an appropriate IEP in the first instance, Gustafson would have had a free appropriate public education for her child, as IDEA requires, and the Board would not have incurred the expense of reimbursement. By moving her son to private school, Gustafson bore the risk that the Board's IEP would be found appropriate after all, or that her choice of schooling would be found inappropriate. But those risks did not eventuate. Under these circumstances, nothing in IDEA requires that she be forced to bear any part of the cost of the Board's failure to provide an appropriate education for her son.
The Board points to Appeal No. 99-85 and argues that the SRO can allow "partial tuition reimbursement without requiring the Board to prove that the tuition was excessive." (Pl.'s Mem. Supp. Summ. J. at 11.) In that decision, however, the hearing officer determined that the program was appropriate to the extent that its principal consulted with the child's teachers." (Greenfield Decl. Ex. 7 at 3 (emphasis added).) The reimbursement was limited to "the amount of the per session rate for a special education teacher for three hours per week." (Id.) The SRO found that three hours per week was the appropriate rate because "that amount appears to be adequate to compensate for the . . . principal's time in consulting with the girl's teachers." (Id.) In that case, the facts allowed the IHO and the SRO to equitably determine a fair allocation for the services received.
In this case, although both the IHO and SRO acknowledged that Roy received more services than an appropriate IEP would have required, they disagreed about whether the facts allowed for an equitable allocation. Receiving more services than required does not automatically mean that full tuition reimbursement should be denied. Such a reduction is only equitable where the record allows for some fair calculation of the value received. In such a case, as for example in Appeal No. 99-85 where the actual supplementary services provided consisted of the consulting services of a special education teacher for a limited period of time, and the fair market value of such services can be determined, it is perhaps unreasonable to charge the Board for full private school tuition.
This case, however, is different. Here, the Board argues that the IHO reasonably used one period a day of resource room time to approximate the value of the supplementary services. The SRO correctly rejected that approach. Unlike consultant special education teachers, one period of appropriate resource room services exists only in the hypothetical. The Board acknowledges that it could not find a school that had an appropriate resource period, and that Roy could not attend a private school and then go elsewhere for a resource room one period a day. (12/7/01 Tr. at 16.) The actual services provided to Roy, moreover, did not consist of one period per day of special instruction, but of specialized techniques utilized in all his classes. Nor, in the SRO's educational judgment, could the pervasive use of specialized techniques be segregated from the total package of educational services York provided to Roy. There is thus no basis to conclude that Gustafson unreasonably contracted for a full private school education, when the only specialized service provided was, or realistically should have been, a single period a day. In Appeal No. 99-85, the special education services provided, in effect, consisted of three hours of consultant services per week; in this case, the IHO's estimate that the services provided were equivalent to one period per day of special instruction was at best an analogy, used to support speculation about the hypothetical value, as a percentage of total tuition, of the special services provided. Even accepting that analogy, as the SRO did, as "a good guess" (Greenfleld Decl. Ex. 6 at 7), equity does not require that reimbursement be limited to a guesstimate of the hypothetical dollar value of services that were pervasively incorporated into the total educational program, when such services were neither separately billed for nor separately available in the market.
The Board argues that if the SRO's decision is affirmed, future tuition reimbursements will not be reduced unless it can demonstrate on the facts that the services exceeded the costs and by how much, thus imposing an excessive financial burden on the Board. Such economic concerns are not new. Similar issues were raised and dismissed in one of the leading Supreme Court cases on the application of IDEA. In Florence County, the school district argued that compelling reimbursement for private schools that did not meet the § 1401(a)(18) definition of a "free appropriate public education" would impose "an unreasonable burden on financially strapped local education authorities." 510 U.S. at 15. The Supreme Court recognized the financial burdens related to IDEA responsibilities, but noted that if public education authorities found adequate placements for children, then there would be no "need [to] worry about reimbursement claims." Id. The same logic applies here. If the Board fulfilled IDEA's mandate and placed Roy adequately, they would not be faced with a claim for reimbursement.
Florence County recognized that total reimbursement may not be appropriate if "the cost of the private education was unreasonable" id., but did not suggest what factors should be considered to evaluate reasonableness. The Second Circuit has interpreted "reasonable"as an amount "that bears a relationship to the quantum of services that the state would have been required to furnish, as well as the fee charged by [similar] providers for their services." Still v. DeBuono, 101 F.3d 888, 893 (2d Cir. 1996). This language does not provide much assistance in this case since, as discussed above, Roy could not have obtained one period of resource room and so there is no free standing market equivalent for the services Roy required.
Although Roy received more services than would have been provided under a proper IEP within the public schools, these added benefits are inextricably linked to the substitution of most private programs for public ones. The gains from smaller class size or greater personal attention are difficult to measure. Given that the situation does not permit a fair approximation of the value of the services received, equity supports full reimbursement. This determination does not turn on the allocation of any burden, but merely, on an acknowledgment that the Board failed to propose a proper IEP, the parent found an appropriate placement, and on the record, given the impossibility of identifying a segregable service for which the cost can reasonably be estimated, full tuition reimbursement provides the least arbitrary and most equitable result.
CONCLUSION
For the reasons set forth above, plaintiff Board's motion for summary judgment is denied. The defendant Gustafson's motion for summary judgment is granted.