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Reyes v. New York City Department of Education, 13‐158 (2d Cir. July 25, 2014)

R.P., the child of the Plaintiff, was denied a Free and Appropriate Education (“FAPE”). “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.” Reyes v. New York City Department of Education, 13‐158, at * 4 (2d Cir. July 25, 2014) (citing 20 U.S.C. § 1412(a)(10)(C)(ii)). “Reimbursement will be granted only if (1) the proposed IEP, [Individualized Education Plan], failed to prive the student with an appropriate public education; (2) the parent’s private placement was appropriate to the child’s needs; and (3) equitable considerations support the parent’s claim.” Id. at *5 (citing Sch. Comm. Of Burlington v. Dep’t of Educ., 471 U.S. 359, 370, 374 (1985)).

Reyes’s son is described as a nineteen year old autistic student with a diagnosis of sensory integration dysfunction, moderate mental retardation and, inter alia, attention-deficit/hyperactivity disorder, needing a “sensory diet” to help him maintain control. Prior to his placement in public school, R.P. was attending the Rebecca school, paid for in the 2009-2010 year pursuant to a November 19, 2010 Independent Hearing Officer (“IHO”) decision. The Individualized Education Plan developed for the 2010 – 2011 school year recommended that R.P. be placed in a public school with six students, one special education teacher and one classroom paraprofessional, including a three month assignment to a one-on-one paraprofessional to “ease the transition” from private to public school. The Department of Education sent Reyes a final notice of recommendation offering her son a seat at P.S. 79.

Reyes and Rebecca School occupational therapy supervisor Mary Wiener visited P.S. 79 and discovered the complete absence of a teacher familiar with the term “sensory diet,” nor a personalized regimen of activities providing the sensory input that R.P. required. After testimony was elicited, an Independent Hearing Officer concluded that the Department of Education denied Reyes’s son a FAPE. The decision was appealed by the Department of Education to the State Education Department’s Office of State Review (“Office of State Review”). The Office of State Review “found that the record did not support the [Independent Hearing Officer’s] determination that the [placement] was inadequate to address R.P.’s needs…” Reyes v. New York City Department of Education, 13‐158, at * 12. Reyes appealed to the Southern District of New York. Both parties moved for summary judgment and the District Court upheld the conclusions of the Office of State Review. Finding that the District Court did not consider the appropriateness of R.P.’s private school placement or the balance of the equities, the Second Circuit reversed and remanded.

When an Independent Hearing Officer and the Office of State Review reach conflicting conclusions, the Second Circuit will defer to the Office of State Review’s decision unless a Court concludes that the Office of State Review’s decision is inadequately reasoned. Reyes v. New York City Department of Education, 13‐158, at * 14 – 15. While in New York, the local school board bears the initial burden of establishing the Individualized Education Plan’s validity, N.Y. Educ. Law § 4401(1)(c), the Individuals with Disabilities Education Act has been interpreted by the Supreme Court to place the burden of challenging and Individualized Education Plan on the party bringing the challenge. Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 57-58 (2005).

Without reaching the question of whether New York’s assignment of the burden of proof is proper under the Schaffer decision, the Second Circuit stated that Reyes met her burden on appeal and indicated in a footnote the failure of the Office of State Review to adhere to state law. The Second Circuit concluded that the Office of State Review’s reliance on testimony that R.P.’s Individualized Education Plan could be modified to extend the paraprofessional’s services was improper.

“An [Individualized Education Plan] that contemplates or implies the possibility of amendments is therefore not substantially different from an [Individualized Education Plan] that is silent on the issue. If the school district were permitted to rely on the possibility of subsequent modifications to defend the [Individualized Education Plan] as originally drafted, then it could defeat any challenge to any [Individualized Education Plan] hypothesizing about what amendments could have taken place over the course of a year…Such an approach would…undermine a core purpose of the [Individuals with Disabilities Education Act]: to ensure an orderly annual review of a child’s needs and to provide for them in a comprehensive plan.” Reyes v. New York City Department of Education, 13‐158, at * 18 – 19.

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