Culmination Paper

To: Prof. Donsky

From: Albana Taragjini

Re: Culmination Paper

Date: 05/14/2012

Reimbursement For Children With Special Needs In Private Schools.

The goal of The American Disability Act (ADA) is to guarantee equal opportunities and free education for children with disabilities in public schools.  Still there are children with learning disabilities who are deprived their right to equal appropriate public free education in private schools. The Individuals with Disabilities Education Act (IDEA) is a federal law enacted in 1990 and reauthorized in 1997 and 2004.  Free Appropriate Public Education (FEPA)is defined as followed:

“Free appropriate public education” means special education and related services that (A) have been provided at public expense, under public supervision and direction, and without charge, (B) meet the standards of the State educational agency, (C) include an appropriate preschool, elementary, or secondary school education in the State involved, and (D) are provided in conformity with the individualized education program required under [20 U.S.C. S 1414(a)(5)]. 20 U.S.C. S 1401(18).

IDEA defines a “special education” as follows:

Special education” means specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a handicapped child, including classroom instruction, instruction in physical education, home instruction and instruction in hospitals and institutions. 20U.S.C. § 1401 (a)(18)

Under IDEA, (1990) in order for a child to be eligible for special education, their disability must be in one of the following categories: a) serious emotional disturbance. b) learning disabilities c) mental retardation d)traumatic brain injury e) autism f) vision and hearing impairments g) physical disabilities h) other health impairments.

There are two basic requirements of ADA to get tuition reimbursement. First, the school district must have failed to offer or provide free appropriate public (FAPE). Second, the special private school must be appropriate for the child.

In, M.H. v. New York City Dept. of Educ. 712 F.Supp 2d 125 (S.D.N.Y. 2010) the court ruled in favor of  the plaintiff’s parents since New York City Department  of Education failed to provide free public education. There, the parents of an autistic student brought an action against New York City Department of Education by challenging the DOE placement of their daughter as inappropriate and asked for reimbursement his private school tuition. The plaintiff’s daughter was classified by the DOE as having autism. At the beginning she did well in school until 9^th grade until she started to have anxiety problems. Depression and anxiety affected her school work to the point that she refused to go to school. As a result, the plaintiff’s parents enrolled her in a therapeutic school in order to reduce her anxiety.  The parents requested an IEP from the school district after enrolling her in the new school. Instead the school district denied their application and the parents enrolled her in a private school. The parents did not agree with the decision of school and sought tuition reimbursement. The district court upheld the (Impartial Hearing Officer) IHO’s decision that the school district had not provided the child with a free and appropriate education and the parents were entitled to tuition reimbursement.

Similarly in  Mr. X v. New York State Educ. Dept., 975 F.Supp. 546 (S.D.N.Y. 1997) the court decided that an IEP (Individualized Education Program prepared by CPSE the (Committee on Preschool Special Education) did not provide the plaintiff free and appropriate education. There, the parent of an autistic student sued New York City Department of Education because the school failed to provide tuition and reimbursement for the cost of the private school from the state. The plaintiff attended public school from kindergarten until third grade. D.A. was a 14-year-old New York City resident suffering from autism, bipolar disorder and attention deficit hyperactivity disorder.  In public school, D.A started to have many problems and he was not able to attend the school with the same efficiency as his others peers. The student, D.A. lacked motivation to learn new tasks and lacked participating in social environments. The parents of the plaintiff were not satisfied and enrolled him in “Rebecca” Private School.  In order to ask for reimbursement for the course of private school, CPSE must consider 3 factors: 1) whether the school has failed to provide FAPE; b) whether the private school placement is appropriate; and whether the “equities” warrant a reimbursement award in full or part. See Forest Grove School Dist. V. T.A., U.S. 129 S.Ct.2484 2496, 174 Led.2d 168 (2009).

The Plaintiffs demonstrated that Rebecca School was an appropriate placement for D.A. who made a huge academic improvement compared to public school. D.A. was able to take care of himself, to read and do research, carry on conversation and have more friends. The court agreed that the plaintiffs submitted sufficient evidence that Rebecca School was an appropriate place for D.A. FAPE must be available to an eligible student “who needs special education and related services, even though the student has not failed or been retained in a course or grade, and is advancing from grade to grade” (34 C.F.R. § 300.101 [c][1]; 8 NYCRR 200.4[c][5]).

Likewise, in G.B. ex rel N.B. v. Tuxedo Union Free School District 751 F.Supp. 2d 552 S.D.N.Y.(2010) the court held that the school district had not provided appropriate education opportunities  for the child and the parents  were entitled for reimbursement. NB. was an 8-year-old girl who has been diagnosed with Pervasive Development Disorder. Her parents made a request to CPSE to place her in a special education class because she was an autistic child. SPCE denied the application and decided to place N.B in another school since that program would improve her education in order to advance her language and social skills. Whatever the reason, N.B. was not happy at that school and her parents enrolled her in a private school. There N. B. made a huge progress academically and emotionally. N.B. had many opportunities to participate in activities with nondisabled peers throughout the school day and was happier than previous school. The court reaffirmed that IDEA permits parents to seek reimbursement for the private placement of a child who was not offered a FAPE.  See Forest Grove Sch. Dist. V. T.A., 557 U.S. 230, 129 S.Ct. 2484,2496, 174 L.Ed.2d 168 (2009). Generally, tuition reimbursement for a private placement is warranted if: (1)”the proposed IEP was inadequate to afford the child an appropriate public education, and (2)….the private education services obtained by the parents were appropriate to the child’s need.” Walczak, 142 F.3d at 129 (citing inter alia, Sch. Comm. of Burlington v. Dept. of Educ. Of Mass., 471 U.S. 359, 370, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985); see also Frank G. v. Bd of Educ. Of Hyde Park, 459 F.3d 356,363 92d Cir.2006).

In R.B. v. New York City Dept. of Educ. 713 F.Supp., 2d 235 (S.D.N.Y. 2010), as in the above cases, the court held that regular education in private schools was inappropriate to meet student’s special needs. There, the student had received special education since she was three years old. She was diagnosed with a Central Auditory disorder and was classified as speech impaired. The student C.Z. attended the Parkside School that offered a language-based program for children aged 5-11. On May 2007, the DOE informed Plaintiffs that it was unable to provide a specific school placement for C.Z. at that time. Therefore, parents signed a contract enrolling C.Z  to another private school since they were worried that DOE would fail to provide C.Z with an appropriate placement. The court stated that where a school district fails to provide a student with a FAPE and the private placement is found to be appropriate, “the district court enjoys broad discretion in considering equitable factors relevant to fashioning relief.” Gagliardo, 489 F. 3d at 112. “Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be requires.” 247 Florence County Sch. Dist.Four v.Carter, 510U.S. 7, 16, 114 S.Ct. 361, 126 L.Ed. 2d 284 (1993).

Also, in Jennifer ex. Rel. Travis D.v. New York City Dept. of Educ., 550 F. Supp. 2d 420 (S.D.N.Y. 2008) the court held that the parents were entitled to tuition reimbursement for a private school placement because the private school provided a better education for the child with special needs. Travis D. was classified as a student with a disability in need of special education services since he was in first grade. Previously he attended community schools, a public school and a state-approved non public school. The IHO denied the application for placement of the child in the private school for special needs children. When Travis was in 8^th grade his situation changed and his parent enrolled him in a private school. The court stated that under the New York regulations N.Y.C.C.R.R. tit. 8, §200.1(cc): the placement of an individual student with a disability in the least restrictive environment shall: (1) provide the special education needed by the student; (2) provide for education of the student to the maximum extent appropriate to the needs of the students who do not have disabilities; and (3) be as close as possible to the student’s home. There, the plaintiff showed that placement in the Legacy Program (private school) was appropriate since the school offered services that were specially designed to meet his needs. After the plaintiff’s son attended the private schools showed more improvement academically, emotionally and he was less anxious in class. Therefore, the plaintiff has submitted evidence that Travis had progressed substantially following his placement in the Legacy Program.

The law provides that public schools should offer free education and appropriate services but sometimes it is difficult for these children to find an adequate service. Therefore, their parents’ enroll them in private schools where they can get a better improvement and new opportunities in order to advance their skills in school. Children with learning disabilities can seek reimbursement for special education in private schools when they demonstrate that: public school denied their free appropriate public education and the placement of a child in private school is appropriate.