VW v. New York City Department of Education, No. 21 CIV. 6317, 2022 WL 3448096, 81 IDELR 194 (S.D.N.Y. Aug. 17, 2022), is a significant case concerning remedies for denial of free, appropriate public education. It involved a 16-year-old student who was diagnosed with autism and who manifested severe expressive and receptive delays and sensory processing deficits. She was considered nonverbal, and her behavior was at times self-injurious. By the time the case reached the district court, the defendant did not dispute that it failed to offer the student FAPE for the 2019-20 school year by failing to provide an IEP for that year. The parent had placed the student in a private school, thus the IHO awarded tuition reimbursement for the parental placement, as well as compensatory education in the form of home-based applied behavior analysis (ABA) services.
The parent appealed the IHO’s order, arguing that the reimbursement should have included the full cost of food during the school day, specifically breakfasts, snacks, and edible reinforcers, that the component of reimbursement for travel did not include transportation-based ABA, and that the parent’s time effectively serving as a transportation paraprofessional should have been reimbursed. The Department of Education cross-appealed, arguing that the IHO should not have ordered compensatory home-based ABA services. The SRO rejected the parent’s challenges to the IHO decision, and went on to decide in favor of the department and overturn the compensatory services award, reasoning that a student cannot receive compensatory education for the same school year in which she receives tuition reimbursement for a unilateral placement because “an award of prospective services circumvents the statutory process requiring a [IEP team] to periodically assess a student’s needs.” 2022 WL 3448096, at *3 (describing Department of Education’s position).
The district court reversed the SRO decision. The court held that compensatory education and tuition reimbursement are not mutually exclusive remedies. Although compensatory services are to be delivered prospectively, ordering them does not undercut or circumvent the process for annual review of a student’s IEP by the IEP team, precisely because the services are compensation for the deprivation of FAPE in the earlier school year, in which FAPE was not provided. The court acknowledged that a requirement for tuition reimbursement is that the private school chosen by the parent had to have offered appropriate education to the student. But the court went on to say that the services to which a student is entitled under the IDEA may include both an educational placement and related services. Related services may include home-based ABA, and that is what the IHO required the department to provide as compensatory services for the deprivation of FAPE in 2019-20. The court collected cases in which courts had ordered or approved orders of tuition reimbursement plus compensatory services.
As for the parent’s objections to the IHO’s order not providing additional reimbursement, the court affirmed the SRO’s denial of transportation-based ABA services, noting that the defendant was already working to secure those services prospectively. The court also rejected the parent’s claim under the IDEA and Section 504 for compensation for the loss of her time effectively serving as a transportation paraprofessional for the student. The court reasoned that out-of-pocket costs of transportation would have been reimbursed had they been proven, and that the parent was not a trained professional whose professional services legally qualified for reimbursement. The court also rejected the claim for reimbursement for additional food, for which proof of payment was lacking.
The opinion is noteworthy for clarifying that in a proper case, both tuition reimbursement and compensatory services might be a proper remedy. What matters is the nature of the deprivation of FAPE and how best to correct it.