The Impact of Individualized Education Programs on Free Appropriate Public Education

Facts of the Case

During the 2010–2011 academic year, R.P., Ms. Reyes's son, was a 16-year-old student with autistic disorder and deficits in cognitive functioning, receptive, expressive, and pragmatic language abilities. In addition, he had diagnoses of sensory integration dysfunction, moderate intellectual disability, and attention-deficit hyperactivity disorder. R.P. had attended the Rebecca School in Manhattan (a therapeutic private school for students with neurodevelopmental delays in relating and communicating) since May 2007. While there, he was provided a “sensory diet” and a personalized regimen of activities to help him maintain control and focus throughout the day. The DOE paid R.P.'s expenses for the 2009–2010 school year, pursuant to a 2010 decision of an Independent Hearing Officer (IHO).

In May 2010, a Committee on Special Education that included R.P's mother, a DOE special education teacher, a DOE psychologist, and a parent member, met to develop R.P.'s new IEP. The IEP for the 2010–2011 academic year recommended that R.P. be placed in a 6:1:1 class, in a public school (six students, a special education teacher, and a classroom paraprofessional) with various related services. The IEP also included a three-month assignment for R.P. to a one-on-one paraprofessional to “ease the transition” from private to public school. On June 15, 2010, the DOE sent Ms. Reyes a final notice of recommendation offering her son a seat at New York Public School 79.

Ms. Reyes and an occupational therapy supervisor from Rebecca School visited Public School 79 and discovered the complete absence of a teacher familiar with the term “sensory diet” and the lack of a personalized regimen of activities providing the sensory input that R.P. required. Instead, both classes that Ms. Reyes and the therapy supervisor observed employed the TEACCH (Treatment and Education of Autistic and Related Communication-Handicapped Children) methodology. TEACCH is an educational program that provides highly structured learning environments for students with autism. This program includes a daily individual schedule, clinical services, parent training and parent support groups, and social play and recreation groups, along with individual counseling for higher-functioning clients and supported employment.

Ms. Reyes ultimately rejected this proposed placement, believing that the TEACCH methodology was inappropriate for her son. Moreover, she was concerned that the school was not familiar with the “sensory diet,” nor could it provide the adequate level of individual attention that R.P. was due. She consequently enrolled R.P. in a 10-month program at Rebecca School for the 2010–2011 year.

According to the 20 U.S.C. § 1412(a)(10)(C)(ii) (2005), “Any parent who thinks that the school district is failing to provide his or her child a FAPE may unilaterally enroll the child in a private school and seek tuition reimbursement from the school district.” However, the reimbursement is granted only if the following conditions are met: the IEP failed to provide the student with a FAPE; the parent's private school placement provides the student with education that was appropriate; and the parent's claim is supported by equitable considerations.

Ms. Reyes filed a due process complaint, initiating the action on March 4, 2011, entitling her to a due process hearing before an IHO. After testimony, the IHO concluded in a decision dated September 20, 2011, that the DOE had denied R.P. a FAPE and that placement at Rebecca School was appropriate. The IHO determined that a 6:1:1 class with 1:1 paraprofessional support for three months was insufficient to meet R.P.'s needs and subsequently ordered the DOE to pay R.P.'s Rebecca School tuition.

On September 27, 2011, the DOE appealed the IHO's decision to the New York State Review Officer (SRO). The SRO overturned the ruling of the IHO, apparently relying on testimony from a psychologist that the plan would have been reviewed after three months and revised or extended if necessary. As the Second Circuit notes, “testimony about additional services that would have been provided had the parent accepted the school district's proposed placement” (Reyes, fn 6, italics in original) has been referred to as “retrospective testimony” in the circuit since 2012.

Ms. Reyes appealed to the United States District Court for the Southern District of New York. On December 11, 2012, the district court upheld the conclusions of the SRO, concluding that, although the SRO's reliance on the DOE psychologist's testimony that the IEP could be modified was impermissible, the remainder of the evidence supported that the IEP was substantively adequate.

Ms. Reyes appealed to the United States Court of Appeals for the Second Circuit.

Ruling and Reasoning

Finding that the district court did not consider the appropriateness of R.P.'s private school placement or the balance of the equities, the Court of Appeals for the Second Circuit reversed and remanded. Under R.E. v. New York City Department of Education, 694 F.3d 167 (2nd Cir. 2012), the SRO's reliance on retrospective testimony asserting that the student's IEP could have been amended to include additional services was found to be improper. In addition, the court found that the IEP's specification of a class ratio of six students to one professional and one paraprofessional for a period of only three months was inadequate for R.P.'s needs and thus constituted a denial of a FAPE.

In New York State, “the local school bears the initial burden of establishing” the IEP's validity (N.Y. Educ. Law § 4404(1)(c) (2007)). However, the IDEA is silent on the burden of proof. In Schaffer v. Weast, 546 U.S. 49 (2005), the U.S. Supreme Court held that the party bringing the suit bears the burden of proof, whether that party is a parent or the school system. Without reaching the question of whether New York's assignment of the burden of proof is proper under Schaffer, the Court of Appeals for the Second Circuit stated that Ms. Reyes met her burden on appeal and indicated in a footnote the failure of the SRO to adhere to state law.

The court of appeals reversed and remanded the case to the district court to consider the appropriateness of R.P.'s placement at Rebecca School and the tuition reimbursement.