New SDNY Decision Bolsters "Connors" Funding
In a decision dated February 1, 2011, the Southern District of New York addressed an important aspect of funding for private school as it pertains to parents who cannot afford to front the tuition. Many parents may already be familiar with the concept of a "Connors case" which has come to stand for the situation where parents have enrolled their child in a private school, and since they cannot afford to front the tuition and then seek reimbursement, instead request direct payment to the school. (The name comes from Connors v. Mills, a 1998 case in the Northern District of New York in which a parent was seeking prospective funding. Ironically, her claim was not successful but there was strong language that direct funding should be available under the right circumstances).
In this case, Mr. A. ex rel D.A. v. NYCDOE, the Court considers the case of a young child with autism who was enrolled in the Rebecca School (a non-approved private school specifically for children with autism) after the DOE failed to recommend a placement for the school year in question. The parents did not have the means to lay out the tuition and then seek reimbursement - a remedy which is explicitly provided for under federal law. Instead, the parents and the school reached an agreement that the parents would file a claim against NYC for the tuition (and if that claim was unsuccessful, the parents would still have a legal obligation to pay the tuition balance). The impartial hearing officer granted the direct funding after finding that the DOE had failed to offer a FAPE and the Rebecca School was appropriate. SRO Paul Kelley, however, reversed the IHO on the grounds that the case did not involve "reimbursement" and therefore no relief could be granted.
This particular issue - regarding parents who are unable to front the tuition payments - has been hot for a while. School districts have attacked "Connors funding" as shams - opportunities for the private schools to inflate the tuition price. School districts have claimed that the law specifically uses the term "reimbursement" and that any relief where the parents are unable to lay out the money are not contemplated by the IDEA. All of these arguments were addressed and rejected in the case at hand.
This case makes clear that funding is available in all of the following situations: (1) where parents have laid out the money and are seeking reimbursement; (2) where the parents have not laid out the money and are seeking prospective funding for the school year in question; (3) where the school year in question has past, the parents did not lay out the money, and they are seeking retrospective direct payment to the school.
The court engaged in a thorough analysis of case law and legislative intent before reaching its conclusion. The court said that "[l]imiting 'the right of unilateral withdrawal' only to those with the financial means to pay the costs of private school tuition in the first instance, is entirely antithetical to IDEA's universal guarantee of a 'free, appropriate public education' to all children with disabilities, regardless of means." It relied on earlier pivotal cases such as Burlington, Carter, and Forest Grove to support the fact that courts have broad discretion to determine appropriate relief, failure of the IDEA to explicitly mention a particular form of relief does not mean that that relief is not available, and direct payment to schools is an available remedy. That the IDEA was meant to protect all children with disabilities, not only those who come from families with means, is stated repeatedly throughout the case.
Furthermore, "[g]iven the nature of the administrative and judicial review process, parents who request an impartial hearing will rarely, if ever, be able to obtain a ruling prior to the onset of the school year. Accordingly, denying parents the opportunity to seek retroactive relief is tantamount to denying them any relief at all under the Act." Parents will still have to satisfy the Burlington factors - i.e., school district did not provide an appropriate program and placement, private school was appropriate, and equities favor the parents - but if they have done that, the fact that they did not lay out the money in the first place will not defeat their claim for funding. [Caveat - parents must remember to state clearly that they are unable to afford the cost of the tuition.]
The court eloquently stated that "[t]he theme of concern for children from low-income families that runs through IDEA and its legislative history counsels caution in adopting an interpretation of sec[tion] 1415(i)(2)(C)(iii) that would limit a private school tuition remedy to those who have the means to pay the tuition in the first instance." It provided examples to support the notion that the IDEA meant for special education programs and services to be provided at no cost to the parents, to all children with disabilities, regardless of their financial means.
In sum, parents who cannot afford to lay out tens of thousands of dollars in tuition and are relying on the impartial hearing process to obtain the necessary funding through the city, will not be precluded from recovering that money if they have satisfied all of the other necessary conditions (discussed above). Because of the significance of this decision, it is likely to be appealed. The implications of this decision and how it would affect parents' behavior will remain to be seen.
NOTE: Although the court emphasizes the idea of "broad discretion" - leaving the door open to other types of creative relief for parents in the future - this case does seem to draw the line somewhere (albeit in dicta). Parents may be restricted from suing prospectively for anticipated expenses in future school years.