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Thursday, May 20, 2010

SDNY rules in part for parents on reimbursement claim; interesting equities analysis

R.B. and H.Z., on behalf of C.Z., 09-CV-7758, decided May 5, 2010 (SDNY 2010): Parent placed the child privately and sought reimbursement. The private placement was a general education program supplemented by a separately paid for special education program. The IHO ruled in favor the parent awarding reimbursement for the whole shot. The SRO reversed. The SRO found that the parent had failed to demonstrate the appropriateness of the general education portion of the program. The SRO also found against the parent on the equities for failure to give proper notice. The SDNY reversed in favor of the parents, but only with respect to the private school special education component of the claim. Thus reimbursement was limited to a fraction of the total claim. The Court’s analysis of the equities is worthy of some exposure. The Court held that
Plaintiffs’ obligations under the IDEA’s notice requirement were not triggered because the DOE never provided plaintiffs with a Final Notice of Recommendation (FNR). Indeed, Plaintiffs could not have informed the DOE that they were “rejecting the placement proposed by the public agency” because the DOE never made a placement recommendation for Plaintiffs to reject.
The DOE had also advised the Plaintiffs in writing that the child had a right to continue in the current placement pending receipt of an FNR. Of note, the Plaintiffs did not challenge the IEP; rather, they only challenged the failure to offer a placement in which the child could receive the recommended services.
        Finally, and of particular interest, the Court found that the parent’s willingness to cooperate with the DOE was evidenced by their purchase of tuition insurance at a cost of $2000, “an expense they are unlikely to have made had they been determined to reject a public placement.”