In M.M. v. New York City Department of Education, No. 21-cv-3693 (BMC), 2024 WL 3904771, 124 LRP 31321 (E.D.N.Y. Aug. 22, 2024), the court addressed a situation in which a school district failed over multiple years to offer an appropriate placement under the Individuals with Disabilities Education Act (IDEA), while the parents’ available private options did not replicate all services listed on the individualized education program (IEP). The court reversed administrative decisions denying tuition reimbursement and concluded that the parents’ unilateral placement satisfied the standard for appropriateness under the circumstances.
The student had autism spectrum disorder and attention-deficit/hyperactivity disorder (ADHD), and Spanish was her primary language. Beginning in 2017, the Committee on Special Education (CSE) recommended a bilingual Spanish special class in a nonpublic school with related services, along with a bilingual Spanish District 75 placement as an interim measure. The district, however, failed to secure a permanent placement for the 2017–18, 2018–19, or 2019–20 school years. Just before the 2017 school year, the district proposed an interim placement in an English-language District 75 program, but the parties agreed that the placement would not have provided a free appropriate public education (FAPE).
The parents ultimately enrolled the student at Nord Anglia International School (NAIS) and sought tuition reimbursement for the 2018–19 and 2019–20 school years, having previously resolved their claim for the 2017–18 year. An impartial hearing officer (IHO) determined that the district denied FAPE but concluded that NAIS was not an appropriate placement. The state review officer (SRO) agreed, acknowledging that the student made progress at NAIS but finding the placement inappropriate because it did not offer Spanish-language instruction or all related services identified in the IEP, including speech-language and occupational therapy.
The record showed that NAIS provided small classes of approximately eleven to twelve students, with instruction often delivered in smaller groups. During the 2018–19 school year, the student had access to a learning assistant and a teacher who spoke Spanish. The school offered a differentiated curriculum and behavior plans that incorporated multisensory instruction, and the student made academic progress in that setting.
On judicial review, the court applied the relaxed standard governing parental placements articulated in Frank G. v. Board of Education of Hyde Park, 459 F.3d 356, 364–65 (2d Cir. 2006). The court concluded that the administrative decisions were not entitled to deference because they were not well reasoned and were unsupported by the record. It emphasized that denying reimbursement would effectively allow the district to benefit from its repeated failure to identify and provide any placement capable of implementing the student’s IEP. The court described this as a fundamental unfairness, noting that the IHO and SRO failed to give proper weight to the district’s inability to recommend a suitable program over several school years.
The court also rejected the argument that the absence of formal bilingual instruction or certain related services rendered NAIS inappropriate. It found that the student had access to resources supporting her bilingual needs and that the inclusion model, small class sizes, and differentiated instruction addressed many of the student’s educational needs, including needs that might otherwise have been met through related services in a public program. The court further noted that the parents acted in good faith and that the student made educational progress at NAIS.
The decision reflects that where a school district repeatedly fails to offer any appropriate placement, parents may satisfy the appropriateness standard for reimbursement even if a private placement does not mirror every service listed on the IEP, particularly where the record shows good-faith decisionmaking and meaningful educational progress.