Avaras v. Clarkstown Central School District, No. 15 CV 9679 (S..D.N.Y.) concerns a child identified as N.A. with reading difficulties and other conditions. He was provided academic intervention services and Response to Intervention services in kindergarten, and received Tier 3 RTI for most of his first grade year, 2011-12. In May 2012, his parent requested a special education evaluation for him. By that time, a private evaluation had identified him as having “classic” dyslexia and in need of a multisensory approach to learning with support including 1:1 services. On June 4, 2012, the parent wrote a letter to the district rejecting the child’s RTI services and reserving the right to place him privately at district expense. The district conducted evaluations and convened an IEP meeting on June 19, 2012, which led to a classification of the child as learning disabled and, after some adjustments, a recommendation for consultant teacher services once per week, a 5:1 resource room in math for 30 minutes daily, and counseling services. The parent disagreed with the recommendation. The IEP team created an IEP, but it was not implemented in the three remaining school days of the year, which were largely administrative, without class instruction. The parent enrolled the child in a private Montessori program for the next school year and told the district she would be seeking reimbursement. The district provided transportation to the private school.

The district scheduled an IEP team meeting for September of 2012, which produced an IEP stating that the child would be placed at the Montessori school for the 2012-13 school year, but otherwise was the same as the June IEP. The parent consented to the provision of special education services, but not to the specific services on the IEP. The child attended the Montessori school for second grade, receiving occupational therapy and consultant teacher services, 1:1 multisensory training, as well as home tutoring. There was in place a services plan from Arlington, the school system in which the private school was located. The child made progress in his areas of weakness, specifically reading and writing. In June 2013, the district conducted an IEP team meeting to create a third grade IEP, relying only on information from the 2012 IEP meeting, due to the parent’s failure to release information from Arlington. The parent rejected the proposed IEP, and in the summer informed the Clarkstown school district that she would place the child at the Montessori school for third grade and seek reimbursement. The school district began to arrange for an IEP team meeting in September of the third grade year, but although the parent met with district administrators no IEP team meeting occurred, and the child attended the private school that school year.

The parent invoked due process on September 27, 2013, and a decision was issued on March 25, 2015. The IHO denied reimbursement for tuition and other expenses for the private school for the 2011-12 and 2013-14 school years, but granted tuition reimbursement for 2012-13 in the amount of $14,375.00 plus transportation costs for that year. The IHO concluded that FAPE was offered for the two years for which reimbursement was denied, but not for the 2012-13 year, and that the Montessori school was an appropriate placement. On cross-appeals, the State review officer (SRO) affirmed.

The parent sued and sought relief under the stay-put provision of the IDEA, 20 U.S.C. § 1415(j), to keep the student at the private school for 2018-19. In an opinion reported at 2018 WL 4103494, 72 IDELR 236 (Aug. 28, 2018), the court granted the motion for relief and directed the district to pay the current tuition, but without any order for retroactive payment, and remanded the issue of reimbursement based on pendency to the IHO. The IHO had previously entered an interim order stating the pendency placement was the private Montessori school and directing the district to provide transportation to and from the school, and neither party appealed that order. The district court stated that the pendency provision of the IDEA functions as an automatic injunction, and that exhaustion of the claim for immediate relief would not be required. Moreover, “the stay-put provision means that an educational agency is required to maintain the status quo placement even if the child would otherwise have no substantive right to it.” Id. at *4 (quoting Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 453 (2d Cir. 2015)).

The court held that in light of the interim order by the IHO, the private school was the last agreed-upon educational placement, in that the district agreed to and already was providing transportation to it as of 2012-13. “Where a district begins providing services, such services become a part of the then-current placement,” id. at *5, and transportation is such a service. The private placement also prevailed under an analysis of the then-current placement. There was no operative IEP for the child during the relevant period, and the placement in operation when due process was invoked was the private school. Following the Doe case, the court held that the parent might be entitled as well to retroactive reimbursement for the tuition back to the date of filing of the due process request, but the court remanded that issue to the hearing officer for decision in the first instance. The court rejected a request for additional relief.

On the merits of the appeal of the IHO and SRO decisions, an opinion reported at 2018 WL 4964230, 73 IDELR 50 (as amended, Oct. 15, 2018), appeal filed, No. 18-3494 (2d Cir. Nov. 21, 2018), the court dismissed the New York State Education Department, and declared that only two issues were fully exhausted: whether N.A. was offered FAPE during each of the school years from fall of 2011 to spring of 2014, and whether the private Montessori placement was appropriate. The court looked at each school year, saying that for 2011-12 the district violated its child-find responsibility by not beginning the evaluation process within a reasonable time after being on notice of a likely disability. “That did not occur here. Instead, the District provided RTI services for N.A. for the majority of both his kindergarten and first grade years, apparently believing that his ability to ‘advance from grade to grade’ was sufficient an excuse not to refer him for evaluation.” Id. at *10. Despite receiving RTI for most of kindergarten he was referred for RTI again in first grade. The duty to refer was triggered no later than eight weeks after N.A. began Tier 3 services in first grade, yet the district did not evaluate until the parent made a request and the evaluation was not ready until only three days remained in the school year. The violation of the obligation to identify and evaluate caused a deprivation of educational benefits.

As for 2012-13, there was no IEP in place at the beginning of the school year covering that school year; in fact, the IEP from the past school year was developed to cover only the three last days of the year. The court agreed with the IHO and SRO that the district denied the child FAPE for that year. Any difficulties with parental agreement with the IEP were irrelevant when the parent consented to provision of special education services, and the obligation to offer services continued after the unilateral placement.

The court ruled that the IEP for 2013-14, which offered 15:1 special education services, resource room 5:1 services for 30 minutes daily, counseling and consultant teacher services, was adequate. The fact it was based on old information was due to the parent’s failure to consent to release of updated information. The court rejected an argument that the program did not offer education in the least restrictive environment. It was not solely in a self-contained classroom, and it fit with the information about the child’s needs then available to the district.

The court had little difficulty concluding that the private Montessori placement was appropriate, offering small classes, 1:1 instruction, and a multisensory approach in an integrated student environment and employing a curriculum specially addressed to reading needs. Considering the equities of reimbursement, the court endorsed the SRO’s decision to limit reimbursement to the ten months of the 2012-13 school year due to delayed notice by the parent. The court rejected the Section 504 and ADA claims under a bad-faith-or-gross-misjudgment standard, though it found the claims not subject to an exhaustion requirement. Section 1983 claims were also dismissed.

The litigation holds a number of matters of interest to IHOs. As for pendency, the court paid serious attention to the IHO determination of the current placement and relied as well on the fact that the district provided services in connection with the private school placement. On the merits of the case, the fact that a continued need for RTI over a long period gives rise to reason to suspect disability and conduct a full evaluation is an important point, as is the conclusion that the failure to have an IEP offered at the beginning of the school year denies FAPE. The district court seemed to find it difficult to fathom why the school district created an IEP that would be good for only the three remaining days of the previous school year. The court gave a careful look at the private school program in determining whether it was appropriate, and found the Montessori program, as enriched with the services provided, to meet the standard.