Special Education Funding

Special education has been experiencing tough times lately. In December, new amendments to state regulations took effect which reduced some of the school districts’ obligations to students with autism and language disabilities. In February, Mayor Bloomberg argued in front of the New York State legislature that too many children with special needs are enrolled in private schools at the taxpayer’s expense; he wants it to be required that these children try public school first (even though the US Supreme Court recently ruled that a child does not have to try public school as a prerequisite to obtaining funding for a private school). Even more recently, there have been rumors that the State Education Department is proposing more amendments that would shrink the rights of students with disabilities even further.

It seems like everyone is going after special education in one form or another, but on February 1, 2011, parents of children with special needs scored a big win. The US District Court for the Southern District of New York came down with an important decision—in a case against the New York City Department of Education—which is favorable to parents of children with special needs, particularly those who cannot afford to lay out the cost of their child’s tuition. To understand the issue in this case, a brief background would be useful.

The New York City Department of Education (DOE) has a number of legal obligations with respect to the children who reside in New York City. For instance, the DOE has to identify those children who are in need of special education and/or related services. It is required to evaluate those children and convene a meeting with their parents to discuss the results of that testing and what the child’s particular issues are. It must recommend an appropriate program as well as an appropriate school placement for the child. If the DOE fails to satisfy these obligations or is unable to provide a suitable learning environment, the law says that the parents may place their child in an appropriate private school and seek reimbursement for the cost of the program.

In a recent case the DOE failed to recommend an appropriate program for a young man diagnosed with autism, so his parents placed him at the Rebecca School, a private school located in Manhattan specifically tailored for children on the autism spectrum. Because the parents could not afford to lay out the required $84,900 in tuition, they reached an agreement with the school whereby they would seek funding for the cost of the program from New York City.

During the course of legal proceedings, it was determined that the DOE had in fact failed to recommend an appropriate program and a timely placement; and the Rebecca School was appropriate to meet the child’s needs. Therefore, the main issue to be determined on appeal to the federal district court can be summarized as follows:  If the school district has failed to meet its obligations to a child with special needs and the child’s parents have therefore enrolled their child in an appropriate private school capable of addressing his needs, but the parents cannot afford to make tuition payments, are they entitled to receive funding for the program from the city?   
According to the Department of Education the answer to that question is no. It argued that the relevant federal law uses the word “reimbursement” and, since the parents had not laid out the money, this was not a case for reimbursement and they were therefore not entitled to funding. The DOE also argued that allowing this type of relief would result in sham transactions whereby the school and parents agree that if funding is not granted, the parents will be relieved from payment.

Fortunately for parents, both arguments were swiftly rejected by the district court. The court, relying on previous case law, explained that it has broad discretion to determine what type of relief would be appropriate in these kinds of cases.  Although federal law mentions the term “reimbursement,” that is just one example of a kind of relief that is available, and it does not mean that any other types of relief are excluded. Regarding “sham transactions,” the court trusted hearing officers and reviewing courts to determine whether the tuition was reasonable.

The court emphasized that the Individuals with Disabilities Education Act (IDEA)—the piece of law that applies to these types of cases—was meant to protect all children with disabilities and not just those who come from families of means. The court said that the history of the law on this topic shows a concern for children from low-income families and we should not limit the remedy of private school tuition to those who have the means to pay the tuition in the first place.  All children with disabilities are guaranteed a free and appropriate education.

Over the DOE’s objections, the court ruled for the parents and granted direct funding to the Rebecca School. It is worth noting that the school year had already ended and the court granted this relief retrospectively. The court recognized that, since the legal process can be time consuming, parents who request an impartial hearing will rarely resolve their cases prior to the start of the school year. Therefore, funding is available to them whether they are suing prospectively (before the start of the school year) or retrospectively (after the school year has past). It does not matter, as long as they are able to prove the merits of their case. This case represents a big victory for parents who cannot afford to lay out the high tuition costs of special education private schools.

In conclusion, the court ordered the DOE to pay the Rebecca School directly and, since the parents did not have the means, they were not required to lay out the money. It is important to keep in mind that parents will still have to satisfy all the typical elements of a claim for reimbursement—the DOE failed to recommend an appropriate program and placement for their child; the private school in which their child is currently enrolled is able to address the child’s unique needs; and the equities favor awarding funding to the parents.

If you have questions about these elements or how they apply to the particular facts and circumstances of your case you should consult with a special education attorney or advocate for assistance.
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Adam Dayan, Esq. is an attorney admitted to the bar in New York and New Jersey. He practices in the area of special education law.