Board of Educ. of Wappingers Cent. Sch. Dist. v. M.N., No. 16-CV-09448(TPG), 2017 WL 4641219, 71 IDELR 9 (S.D.N.Y. Oct. 13, 2017), appeal filed, No. 17-3707 (2d Cir. Nov. 14, 2017), is a recent case of interest with regard to the IDEA child-find requirement, the functional behavioral assessment mandate in New York law, and IDEA’s tuition reimbursement remedy. The case involved a teenager diagnosed with ADHD, reactive disorder, and mood disorder, who was in her ninth and tenth grade years. The parents had withdrawn her from the school district in her sixth-grade year because she was struggling socially and academically, and had placed her in an out-of-district private school. At the start of her ninth-grade year, the student enrolled at a private boarding school in Massachusetts, where she received an academic skills program and had meetings with the school psychologist. In December 2014, the school asked her to take a medical leave of absence, citing information that she was harming herself and posting suicidal ideas on social media. She returned home, and a psychologist who conducted a psychoeducational evaluation recommended placement in a therapeutic boarding school.
The parents contacted the district, said their daughter was in crisis, and asked the district to explore schooling options for her. The student returned to her private school in January, but continued self-harming and was expelled that month. On January 18, 2015, the parents notified the district that they were enrolling the student in a therapeutic residential school in Arizona, and in March they requested a meeting and informed the district they would be seeking for tuition reimbursement for the Arizona placement. The district requested consent for evaluation on April 19 and sent an evaluator to Arizona to conduct the testing. On June 25, the district convened an IEP team meeting, found the student eligible for special education under the emotional disturbance category, developed an IEP, and began a search for an appropriate day or residential therapeutic school. The district notified the parents in August 2015 that three schools expressed interest in enrolling the student, but the student was unable to attend any of the schools’ in-person admission interviews, and was accordingly rejected by all of them. On August 19, the parents rejected the June 2015 IEP and notified the district of their intent to keep the student at the school in Arizona for 2015-16 and seek tuition reimbursement. Their due process hearing request was filed on September 19, and was amended December 30.
The Impartial Hearing Officer (IHO) ruled that the district violated the IDEA child-find obligation and failed to provide FAPE for the period of the 2014-15 school year following the parents’ notification of the emergency situation when the student was placed on leave of absence. The IHO reasoned that the district had reason to suspect she was eligible for special education in December, and that an appropriate IEP was not in place at the start of the 2015-16 school year. Reimbursement was granted for the 2015-16 school year, but denied for the 2014-15 year on account of the parents’ failure to give timely notice of the unilateral Arizona placement. The district appealed to the State Review Officer (SRO), who affirmed the IHO with regard to the Child-Find violation and the denial of FAPE by failing to finalize an adequate IEP by the start of the 2015-16 school year. The SRO affirmed the grant of tuition reimbursement for 2015-16, but reversed the IHO’s denial of reimbursement for the part of the 2014-15 school year during which the student attended the school in Arizona. The SRO made a specific finding that the Arizona school was an appropriate placement for the student. The district appealed to federal court.
Judge Griesa affirmed in part and reversed in part. The court agreed with the administrative determination holding that the district violated its child-find obligation when in December 2014 it had been given reason to suspect the child’s need for an evaluation, but it failed to refer the student to its special education committee until the parents requested a referral in March 2015. The court declared that the district then failed to implement an IEP that adequately met her needs before the beginning of the 2015-16 school year. The opinion relied on cases such as W.A. v. Hendrick Hudson Cent. Sch. Dist., 219 F. Supp. 3d 421, 459 (S.D.N.Y. 2016), and R.E. v. Brewster Cent. Sch. Dist., 180 F. Supp. 3d 262, 270 (S.D.N.Y. 2016) for the proposition that when reason to suspect an evaluation is needed, a referral to the committee on special education must be made and an evaluation conducted within a reasonable time. The court noted that the IHO and SRO had both made close analyses of the record and written well-reasoned opinions.
On tuition reimbursement for 2014-15, the court deferred to the SRO’s conclusion that the private school was appropriate, pointing out that the private school altered its treatment plan to meet the student’s needs and used various strategies to respond to her behavior. She made progress and completed objectives, even if her progress was slow. With regard to the equities and, in particular, the failure of the parents to provide notice of the intent to place the student unilaterally ten days before enrollment, the judge noted the burden on the parents as to the issue, but also said that the court has broad discretion. The court deferred to the SRO determination that equitable considerations favored reimbursement, i.e., the need for a therapeutic placement arose because of a crisis, and the parents cooperated fully with the evaluation process. The court pointed out that the ten-day rule of 20 U.S.C. § 1412(a)(10)(C)(iii) is simply that reimbursement “may be reduced or denied.” “[W]hether or not to grant reimbursement is discretionary.” 2017 WL 4641219, at *10.
With regard to the 2015-16 school year, the court reversed the SRO determination that the district violated the FAPE obligation by failing to conduct a functional behavioral assessment. Although N.Y. Comp. Codes R. & Regs. tit. 8, § 200.4(b)(1)(v) requires an FBA when the student’s “behavior impedes his or her learning or that of others,” the court found that the failure did not deny the student FAPE. It reasoned that the district conducted a psychoeducational evaluation that included classroom observation, review of the student’s performance on standardized tests and in her classes, review of her medical diagnoses, a social history, and feedback from the private school; the psychoeducational evaluation also included results of a test called the Behavior Assessment System for Children-Second Edition, or BASC-2. The district said an FBA was not conducted because it was waiting until the student was placed in a new school.
Nevertheless, the court affirmed the SRO’s determination that the IEP for the student was substantively inadequate in that it was not in a complete and finalized form by the beginning of the 2015-16 school year and called for placement in the home public school district even though in its management needs section it specified that the student would need a special school environment, “suggesting the placement was not tailored to [the student’s] emotionally fragile state.” Id. at 12. Failure of the student to attend in-person interviews with the private schools identified by the district was not a ground to deny reimbursement when the parents stated that they were acting on the advice of the student’s private school placement, “and reasonably believed that it would be dangerous for [the student] to leave this familiar environment for an in-person intake interview.” Id. at 13. The court thus affirmed the reimbursement award.
The court’s opinion stresses both deference to the administrative decision makers and the emergency nature of the need for evaluation and placement. On the reimbursement issue, it endorses the SRO’s approach to the equitable considerations, and reinforces the importance of the discretion that must be exercised in determining whether to reduce or withhold a reimbursement award pursuant to 20 U.S.C. § 1412(a)(10)(C)(iii).