V.A. v. City of New York, No. 20-CV-0989(EK)(RML), 2022 WL 1469394, 81 IDELR 46 (E.D.N.Y. May 10, 2022), addresses issues of notice of placement as well as appropriate education. Accordingly, it may be of guidance to impartial hearing officers. The parent sought tuition reimbursement for her daughter for the 2018-19 school year, when the student was in eighth grade. The public school system had designated the student as having a specific learning disability in reading back in 2012. In seventh grade (2017-18), the student attended a private school, and the parent took on the obligation of paying tuition. The public school system’s IEP for the following school year, 2018-19, provided for a 12:1+1 class for academics in a nonspecialized public school as well as various related services and supports. The projected implementation date was September 3, 2018.

The 2018-19 IEP did not identify any specific school for the student. The defendant maintained that it mailed a “school location letter” to the parent on July 12, 2018. The parent maintained that she never received the letter or any other notice of the location of the placement. The copy of the letter produced by the defendant at hearing had the date of September 9, 2018, a Sunday four days after the start of the school year. The defendant said that the date on the copy was due to a computer programming error: the student information database was said to generate dates based on the start of the school year that the staff could not modify. But, as the court pointed out, September 9 was not the start of the school year, so “The City thus has offered no logical explanation for why September 9 was printed on the letter.” Id. at *2. The defendant relied on testimony from a placement officer that the letter was mailed, and a document from the computerized student database.

The parent said that since she had no information about the school designation, she arranged for placement of the student at the private school the student had attended the previous year. In August (either August 17 or 19), she sent a letter to the committee on special education stating her intention to place the student at the private school starting September 4 and seek reimbursement. She enrolled the student there, acquiring an obligation to pay $41,659, plus or minus any adjustment that the New York State Education Department would make in the state-approved rate. The parent filed for due process on September 28, 2018. The August 19, 2019, IHO decision rejected the parent’s contention that the site offer letter had never been received, and concluded that the IEP was substantively adequate. The SRO affirmed, acknowledging that “in light of the immense … size of the district in this case, it is reasonable to hold that … the district was required to notify the parent where the IEP services would be implemented before the IEP went into effect as part of its obligations to implement the student’s services,” id. at *4 (quoting SRO decision) but concluding that a presumption of mailing and receipt applied and the IHO was entitled to rely on the placement officer’s testimony about mailing the letter.

The district court vacated the SRO decision. It noted that the school system had the burden of establishing the validity of its plan for the student, and:

Given the uncertainty surrounding the mailing of the school location letter, the City failed (at the first step) to demonstrate that its plan provided K.A.D. with a FAPE — at least on a timely basis. Simply put, a school district that fails to tell a parent where it proposes to send her child to school cannot carry its burden of demonstrating that it proposed a valid plan for that student.

Id. at *5. The case was remanded for a decision whether the parent’s unilateral placement was appropriate to the student’s needs and whether the equities favored relief.

As the court noted, the federal regulations require that an IEP include the location of the services to be provided, 34 C.F.R. § 300.323(a), and even if it is not a per se violation for the IEP to omit the name of the school if the information soon follows, the information cannot come so late that it impedes the parent’s ability to participate meaningfully in the school selection process. The court collected cases in support of that proposition. Although a presumption of receipt of a letter applies under New York law when the record establishes office procedures followed in the regular course of business under which correspondence is addressed and mailed, the presumption did not apply here. The court cited the lack of testimony of an independent recollection on the part of the placement officer of mailing the letter when she mailed many such letters in the course of the year. The court also noted the September 9 date of the letter – inconsistent with the claim that letters were dated for the start of the school year – as well as the absence of relevant information in the database log. Under New York law, various additional evidence in support of the claim of actual mailing was also insufficient, notably because of the lack of specific recollection of mailing the letter on the part of the placement officer.

The absence of notice meant that the parent could not arrange a visit to the proposed placement or otherwise meaningfully participate in the school selection process. Policy concerns did not compel deference to the SRO in this case, where the notice question turned on New York law about presumptions of mailing and receipt.

The court found remand on the appropriateness of the private placement and the equities to be proper. The SRO did not reach those issues, and the court found that the record did not support the IHO’s findings that the private placement failed to offer sufficient remediation and was not slowly enough paced. The evidence the IHO relied on as to the student’s reading level was from 2017 and was contradicted by standardized testing from December 2018. Moreover, eventually the defendant itself placed the student at the private placement and funded the tuition, at least as of 2021. The private placement provided all or most of the services in the IEP. The court said the SRO should make the decision about the appropriateness of the private placement in the first instance.

The court’s decision and its helpful collection of similar cases serve to underline the importance of actual notice to the parent of the location of a school district’s placement so that the parents can meaningfully participate in the decision. Its exposition of New York law on presumptions of mailing and receipt is also instructive in light of the apparent weaknesses in the computerized system for keeping track of notices to parents.