A.S. v. Board of Education of Shenendohowa Central School District, No. 1:17-CV-0501, 2019 WL 719833, 73 IDELR 260 (N.D.N.Y. Feb. 20, 2019), bears special interest for impartial hearing officers regarding tuition reimbursement. The case involved a seven year old boy with autism spectrum disorder. The district placed the child in a private preschool for most of the 2015-16 school year pursuant to a resolution agreement. For 2016-17, it proposed an IEP by which he would attend a general education kindergarten class for a half day, and attend a special education class with a 12:1:1 student-certified teacher-teacher assistant ratio for two hours per day, plus occupational and speech therapy six times per month. The IEP did not specify applied behavior analysis methodology, but said the staff would be trained in ABA. The parents objected and withdrew the child to home-school him, placing him part-time in a day care setting as well. Their due process complaint said the child needed a comprehensive ABA program; it asked for return of the child to the private preschool program or creation of a full-day ABA classroom, with ABA training for all personnel and Board Certified Behavior Analyst certification for the lead teacher. The IHO upheld the district’s program. but the state review officer (SRO) held, among other things, that while the IEP was otherwise sufficient, the district failed to satisfy the least restrictive environment requirement; the SRO nonetheless denied any reimbursement for the home instruction.

The parents, proceeding pro se, appealed to district court. After denying a preliminary injunction request, the court dismissed claims against individual defendants. In the February 20, 2019, decision, it granted summary judgment to the school district. The court found the case not moot, noting that the dispute was capable of repetition yet evading review in that the controversy over the child’s entitlement to ABA was likely to recur; moreover, the parents sought compensatory education on the ground that the child’s right to services while the case was pending were infringed. The court further ruled that various claims not relating to the validity of the child’s educational program under IDEA were not exhausted through the administrative process.

On the merits of the IDEA appropriate education claims, the court upheld the conclusion of the SRO that the student made progress when receiving instruction at the public school from September to November 2015 using both ABA and non-ABA methodologies, in individual settings and those of other sizes. The court noted that although the parents presented a doctor’s letter at the due process hearing that said the district should consider an ABA approach, the doctor did not testify at hearing and the SRO could reasonably discount the parents’ report that the doctor told them an ABA program was truly essential. The court also rejected an argument based on pendency rights that the district had to reimburse the home instruction program. Instead, the SRO correctly identified an October 2015 IEP as the current educational placement as of filing of the due process complaint. The resolution agreement modified that IEP to specify the private preschool as the place of instruction, but the child aged out of that program at the time of the due process complaint, and the district kindergarten, rather than home-schooling, was said to be the same general level and type of services.

In addressing the claim for reimbursement for home-based instruction, the court further held that the parents had not met their burden of demonstrating that their unilateral placement was appropriate for the child’s needs. The court stated:

Here, the only deficiency with the IEP the SRO identified was the district’s failure to consider the extent to which its program constituted a removal from the general education setting in a manner inconsistent with A.S.’s LRE. . . . As the Court upholds the SRO conclusion that the only deficiency in the IEP was the LRE issue, the unilateral placement can only be regarded as proper, or appropriate, if the unilateral placement addressed that LRE deficiency. . . The parents’ unilateral placement did not address this deficiency. The parents did not place A.S. in a more general education setting or in a plausibly less restrictive environment. Rather, the parents provided A.S. home-based instruction that removed him even further from a general education setting. . . . Since this unilateral placement did not provide the element of special education services in which the District was deficient, it was not proper.

A.S., 2019 WL 719833, at *9 (internal quotation marks omitted).

The court also disposed of claims for attorneys’ fees (noting that the pro se plaintiffs were not attorneys), conclusory allegations that the SRO was biased, arguments that the IHO improperly excluded academic publications proffered without foundation, a claim that the child had a right to the specific methodology of ABA, the alleged inadequacy of various annual goals, claimed deficiencies in the New York special education regulations regarding least restrictive environment and general vagueness, and additional claims that were not exhausted or not sufficiently specified.

The newsworthy portion of the case is its discussion of the mismatch between the one identified deficiency in the district’s program (the LRE failure, which, perhaps oddly, is not itself discussed in the district court opinion) and the services that the parents unilaterally obtained, and for which they sought reimbursement. At the same time, the A.S. court acknowledged that parents making unilateral placements when their children have been denied FAPE should not be held to the least restrictive environment standards that public schools must observe. This proposition reflects the fact that parents typically lack the ability to place their children in mainstreamed programs, which in general are those in public schools. Private schools that serve children with disabilities specialize in serving children with disabilities, and a nonresident of a district cannot purchase a general education public school program the same way that a parent might enroll a child in a private school. Courts have overwhelmingly held that parents need not meet least restrictive environment standards. See, e.g., C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 837, 63 IDELR 1 (2d Cir. 2014) (finding private placement at school for students with disabilities to be appropriate; declaring that “parents whose children are denied a FAPE may be and often are forced to turn to specialized private schools that educate only disabled children. Such private schools are necessarily restrictive as they do not educate disabled and nondisabled children together, and may be more restrictive than the public school from which the child was removed. Inflexibly requiring that the parents secure a private school that is nonrestrictive, or at least as nonrestrictive as the FAPE-denying public school, would undermine the right of unilateral withdrawal the Supreme Court recognized in Burlington.”). This, of course, is not to deny that some cases consider the restrictiveness of a parental placement as a factor in considering whether it provides appropriateness education. See, e.g., M.S v. Board of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 105, 33 IDELR 183 (2d Cir. 2000).