City Must Foot the Bill for Disabled Child’s Tuition

MANHATTAN (CN) - The New York City Department of Education must pay the $84,900-a-year private school tuition of a disabled student whom it was unable to provide a "free, appropriate public education."

Attorneys for the child's family called the decision "groundbreaking" on Thursday.

"This is the first federal court decision to squarely decide this issue: whether or not parents and child can seek direct funding for a nonapproved private school when the district fails to offer an appropriate education, if the family does not have financial means to front the tuition," said Michele Kule-Korgood, one of the lead attorneys representing the plaintiffs, in a conference call with her associate Tamara Roff.

The city may appeal, one of its attorneys said Thursday.

"We are disappointed with the decision and are considering our legal options," city attorney Alan Rosinus said.

In the 47-page opinion filed on Tuesday, U.S. District Judge Paul Gardephe wrote that the city's school system failed to meet the demands of the Individuals with Disabilities Education Act, which mandated that all students be provided with a "free, appropriate public education."

The family of the disabled child, D.A., who sued the city anonymously, said their son needed private schooling in the 2007-08 school year, when he was 14 and suffering from autism, Asperger's syndrome, bipolar disorder and attention deficit hyperactivity disorder.

D.A. had been educated in the city's public schools until grade six, when he entered the Rebecca School, a private institution not approved by the city that charges $84,900 in annual tuition.

The parents had tried to enroll their son in three other schools approved by the state, but ultimately only achieved success with the Rebecca School, according to the ruling.

The Education Department blamed this on "parental intransigence," but the judge rejected that argument.

"There is no evidence of parental intransigence here," Gardephe wrote. "D.A.'s parents were contacted by three private schools: Hawthorne, Greenberg and AMAC. It is undisputed that Mr. A and D.A. visited Hawthorne and Greenberg, but neither school offered a placement to D.A. As to AMAC, Mr. A testified that after receiving a call from that school, he twice made return calls. Mr. A left a message stating that he was calling about a possible placement, but was never contacted again by AMAC, by telephone, email or letter."

An impartial hearing officer "concluded that the Rebecca School was an appropriate placement" because "the program at the Rebecca School is aligned with the child's sensory processing, attentional, behavioral, academic, language and communication, social, and motor needs . . . and has provided the student with educational benefits," the opinion states.

The Rebecca School also provided "certain services that were not required by the IEP, such as art therapy and academic units specifically tailored to his interest in filmmaking," Gardephe continued, referring to the acronym for an Individualized Education Program. The Individuals with Disabilities Education Act requires schools to create such plans tailored to the unique needs of students with disabilities.

D.A.'s family had only been able to make a "nominal payment" toward the hefty tuition bill, but they sued to have the city reimburse the Rebecca School retroactively.

D.A. excelled at the Rebecca School, the judge found. Besides his academic progress and extracurricular interests, parents and teachers noticed that D.A. exhibited "greater self-control, less anger, aggression and volatility, and more successful peer relationships" and "gained the ability to carry on a conversation, read and conduct research, care for himself, and travel unescorted back and forth from school."

"I think [the case] was a success," said Rebecca Shore, litigation director of Advocates for Children of New York, in a phone interview following the ruling. "From our perspective, these payments should always have been allowed, and we were disappointed that the state review officer had found otherwise. So we are heartened to see the judge had decided the right way."

Her organization co-authored amicus briefs with Partnership for Children's Rights on behalf of the disabled student's family.

The state review officer in an earlier ruling declined to reimburse the Rebecca School's tuition since the child's parents never actually paid it, but Gardephe found that disabilities act, IDEA, does in fact such retroactive payments.

"The theme of concern for children from low-income families that runs through IDEA and its legislative history counsels caution in adopting an interpretation of [the law] that would limit a private school tuition remedy to those who have the means to pay the tuition in the first instance," Gardephe wrote.

In his decision, he quotes several members of Congress, including the late Sen. Ted Kennedy who helped pass the bill in 1990. Kennedy had expressed concern about the "already pervasive condition" of "mislabeling and over-referral of minority, poor, and limited-English proficient children."

"The fact that IDEA does not explicitly reference this remedy is not dispositive," Gardephe wrote. "Given the nature of the administrative and judicial review process, parents who request an impartial hearing will rarely, if ever, be able to obtain a ruling prior to the onset of the school year. Accordingly, denying parents the opportunity to seek retroactive relief is tantamount to denying them any relief at all under the act."

"A contrary ruling would be entirely inconsistent with IDEA's statutory purpose, including the goal of ensuring a FAPE to the least privileged of the disabled children in our nation." Gardephe wrote, referring to the acronym for the Free Appropriate Public Education doctrine.

Shore, the representative of Advocates for Children of New York, said Gardephe's ruling affirms what the legislation and case law precedent already had determined.

"I think the Supreme Court has certainly contemplated that retroactive direct payment was what was expected under the IDEA," Shore said. "I think unfortunately, the New York City Department of Education and the state review officer took a different mindset and different interpretation. It was up to Judge Gardephe in the decision to correct the mistakes they had been making in interpretation. But I wouldn't say it was a broadening of the relief."

She added that it was the first time such a ruling had been made in New York.

"In New York, there hadn't been express case law confirming the intent of the IDEA," Shore said. "In that case, it's precedent, and hopefully it'll stop the Department of Education and the [state review officer] from making this ruling and interpretation in the future."

D.A.'s parents were pleased with the ruling, their lawyers said.

"They are ecstatic that Judge Gardephe has come not only to the correct conclusion for their child, but also that this will have a positive impact on any student who has not been offered a free and appropriate public education by the Department of Education," Roff said.

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