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  • Writer's pictureAdam Dayan, Esq.

SRO Decision 12-152

A recent SRO decision considered the issue of direct/prospective funding for a unilateral placement. This case has special significance for me (beyond the legal implications) and I'll tell you why. This case is similar to one of the very first cases I took on when I first started my practice. I should mention that the overall time frame for this case was exceptionally long: we spent a while preparing the case before filing the complaint, once we filed the complaint the proceedings were extensive, and then it took a pretty long time to receive a decision (which we did not get until April 2012). Anyway, my clients were seeking direct funding for a unilateral placement for their son after the school district had failed to provide an appropriate program, and my clients lacked the means to pay the enormous tuition costs. We lost that case at the IHO level. Ouch!! A devastating blow. I had just started off on my own. I had so much enthusiasm and momentum. In some sense, I felt ready to take over the world. And there I was breaking out of the gate with a big, fat "L"?

I don't think I realized the full import of the decision when I first read it. In my initial reading, it seemed as though we had done everything right. We had proven that "the three prongs" should be determined in favor of the parents because (1) the district failed to provide an appropriate education, (2) the private school was appropriate, and (3) the parents had always communicated their concerns and cooperated. Usually, when you win the three win!!

So what happened? The IHO had read into the law a new prong: if the parents lacked the means to pay the private school's tuition, the tuition contract must therefore be a sham and the parents must therefore be denied funding. The IHO disregarded recent federal case law (see Mr. and Mrs. A v. N.Y.C. Department of Education) that had established that a parent's financial hardship should not be the sole basis for a denial of funding.

We quickly appealed the IHO decision to the state review officer. I poured everything into that appeal. And I guess it showed because the school district folded. They decided not to continue litigating the matter. We reached a settlement agreement whereby the district agreed to pay for the cost of the child's private school program. Redemption!

But here we are, more than a year later, and we have another IHO decision from the same IHO coming down in a similar way. Since the IHO's ruling in my case, courts have reiterated that parents who lack the means to pay a private school's tuition should not be denied reimbursement/funding where the three prongs (a.k.a. the "Burlington/Carter" prongs) have been proven. Those cases also explain the reasons that this should be so. That the IDEA was meant to protect the most disadvantaged children, including those whose parents lack financial means. The IHO, however, thought otherwise and denied the parents claim for funding.

On appeal, the SRO disagreed with the IHO's conclusions. SRO Bates recognized that the IHO inappropriately jumped to the question of direct/prospective funding before first determining the Burlington/Carter factors. The SRO further concluded that "the IHO incorrectly found that the parents lacked standing after making determinations that the parents had not paid any tuition or incurred out-of-pocket expenses and that the student's private school undertook the financial risk of the student's education rather than the parents."

In the course of his analysis, the SRO also explained that, in some cases, just because a third party has funded a child's education does not mean that the child's parent should be precluded from obtaining reimbursement/funding:

[W]here there is a close familial relationship between the student and the individual who gifted the funds to the parents, it would not be consistent with the purpose of the IDEA or equitable principles to preclude tuition reimbursement relief solely because the funds contributed by a student's grandparent had gifted, rather than loaned, the funds to the parent [sic]. The IDEA was not enacted to discourage familial support of a student with a disability, and in some circumstances, the IDEA itself contemplates that a grandparents [sic] may be among the individuals that may maintain an impartial due process proceeding on behalf of a student.

After establishing that the IHO's grounds for denying funding were invalid, the SRO remanded the matter to the impartial hearing office for a determination on the merits of the parents' claims.

In light of the parents' allegations of hearing officer misconduct, the matter was remanded to a brand new IHO.

There will be a new impartial hearing, and the parents will have another opportunity to secure the funding they are seeking.


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