VALERIE CAPRONI, District Judge.
This case is brought under the Individuals with Disabilities in Education Act ("IDEA"), 20 U.S.C. § 1400 et seq., by a parent, L.W., and child, Q.W.H., seeking reimbursement from the New York City Department of Education ("DOE") for the child's private school tuition. As this Court has expressed previously, the Court's heart goes out to the parent, who wants the very best for her disabled child. The Court does not begrudge the parent's desire to place her child in the school that she believes is best. But the law does not guarantee disabled children—or, for that matter, gifted or normally-talented children—the best education that money can buy. What it guarantees disabled children is a free and appropriate public education ("FAPE"). In this case, the parent unilaterally elected to enroll her child in private school. That was the parent's prerogative, but because the Plaintiffs have not demonstrated that Q.W.H. was denied a FAPE, their claim for tuition reimbursement is denied.
Plaintiffs seek tuition reimbursement for the 2012-13 school year, during which Q.W.H. was enrolled at Cooke Center Grammar School ("Cooke"), as she had been for several prior years. At that time, Q.W.H. was eleven years old and entering the sixth grade. Ex. 7 at 1.
On February 28, 2012, the DOE convened a Committee on Special Education ("CSE") to develop Q.W.H.'s Individualized Education Program ("IEP") for the 2012-13 year ("CSE meeting"). See Ex. 7; Tr. 33. Present at the CSE meeting was a DOE school psychologist, who also served as the District Representative at the meeting (Nessan O'Sullivan),
The 2012-13 IEP recommended a Special Education Classroom with a "121+1" staffing ratio, as well as related services of Speech-Language Therapy, Occupational Therapy, and Individual and Group Counseling Services. Ex. 7 at 9-10.
On August 27, 2012, the DOE issued a Final Notice of Recommendation ("FNR") placing Q.W.H. at P373K @ Brooklyn Transition Center in Brooklyn, New York ("P373K"). Ex. N.
The Assistant Principal told L.W. that P373K had only one class for sixth grade students, Tr. 184. The building in which P373K is located is comprised of approximately twenty classes located on four floors—one floor was a charter school and the rest of the school and classes, other than the sixth grade, was a high school. Tr. 185, 200. L.W. testified that she was able to observe the sixth grade class through the window of a closed door, but she was not permitted to enter or speak to the teacher. Tr. 184-85. L.W. understood that, even though Q.W.H. was not on the roster, this would have been Q.W.H.'s class because the school had only one sixth grade class. Tr. 199-200. She observed eight students in the class, Tr. 198, and two adults (one teacher and another adult whom L.W. believed to be a paraprofessional), Tr. 199. She could not remember whether she was told the students' ages, Tr. 184, but testified that the Assistant Principal told her that the students' academic levels ranged from first to seventh grade, Tr. 185, 201. Finally, she testified that the Assistant Principal told her that the occupational and physical therapists were from outside the school and that the paraprofessional, not the teacher, would teach students in small groups. Tr. 186, 202-03.
On September 18, 2012, L.W. rejected the placement. Ex. L. The letter from her attorney summarized her concerns, including that Q.W.H. "would be one of the youngest children in the building with few peers" because the school is predominantly a high school; Q.W.H. "would be one of the lowest functioning children in the school academically;" "the reading program offered at P373 [would] not be supportive enough for [Q.W.H.]" because the occupational therapists would be contracted from an outside agency and not regularly on site; and much of the students' instruction time would be spent with paraprofessionals who did not have the appropriate training to address Q.W.H.'s learning disabilities. Ex. L. L.W. raised no concern that P373K did not actually have a sixth grade 1211 class or that the class she saw had too few students to be appropriate for her daughter. L.W. proceeded unilaterally to enroll Q.W.H. in Cooke for the 2012-13 school year. Plaintiffs are now seeking reimbursement for Q.W.H.'s tuition.
L.W. filed a due process challenge ("DPC") on December 18, 2012, requesting an impartial hearing. The DPC challenged the sufficiency of the 2012-13 IEP, specifically the appropriateness of a 1211 class size recommendation, Ex. 1 at 2,
An impartial hearing was held before an IHO. At the hearing, DOE presented testimony from the DOE school psychologist who had attended the CSE Meeting, Tr. 30-70, and from Roger Greenidge, the Assistant Principal at P373K. Tr. 209-214. Plaintiffs presented testimony from L.W. and three representatives of Cooke. Tr. 71-208.
At the hearing, the school psychologist testified that the CSE team "recommended a fulltime special class with a staffing ratio of 12 students, one teacher, and one paraprofessional" because
Tr. 60-61. The psychologist also explained that, although small group instruction was not specified in the IEP, a 1211 class can allow for a certain amount of small group instruction. Tr. 67-70. There had been no objections at the CSE meeting to the 1211 staffing ratio. Tr. 61, 67-68.
L.W. testified about her visit to P373K and reiterated her concerns with the proposed placement, including
Tr. 186-87.
During the DOE's rebuttal, Greenidge testified that he did not recall meeting L.W. when she visited the school. Tr. 214. Greenidge was asked about a 1211 sixth grade classroom
Tr. 212. He denied that the students in the junior high class were functioning at a first to seventh grade level, testifying that he thought "their range is typical of many of our students, who range from pre-K to third grade." Tr. 212-13. He denied that the paraprofessionals taught the class, indicating that "the teacher teaches the class" and the paraprofessionals "assist the teacher. They are part of the instructional team, and very often they split into groups that the paraprofessionals will work under the supervision of the teacher." Tr. 213.
On April 3, 2013, the IHO issued Findings of Fact and Decision ("IHO Decision"). The IHO Decision concluded that "the IEP was both procedurally and substantively appropriate and was crafted to meet the individual education needs of the student." IHO Decision at 7. It further found that the school psychologist's testimony was "credible and not rebutted by the Parent." Id. at 7. The decision concluded, however, that the DOE failed to provide Q.W.H. with a FAPE because it failed to offer an appropriate placement. Id. at 7-8. The IHO noted that the DOE had "offered no direct testimony about the actual recommended placement which was offered to the student or that said placement would be able to implement the IEP." Id. at 7. Moreover, the IHO concluded that the DOE's rebuttal witness testimony was inconclusive as to the placement's ability to implement the IEP and that the DOE had offered "no testimony that the school in fact had a 12:1:1 6
Both parties appealed the IHO's Decision to the SRO the DOE appealed the finding that DOE failed to offer Q.W.H. a FAPE for the 2012-13 school year; Plaintiffs cross-appealed the determination that the IEP's recommendation of a 1211 special class was procedurally and substantively appropriate. SRO Decision at 1.
On November 12, 2014, the SRO issued her decision ("SRO Decision"). As to the IEP, the SRO held that "the February 2012 IEP, including the recommendation of a 121+1 special class, was both procedurally and substantively appropriate and was crafted to meet the individual educational needs of the student." SRO Decision at 5 (internal quotation and citation omitted).
The SRO reversed the IHO's conclusion that the DOE had failed to offer a FAPE based on the recommended placement. Id. at 6-9. Relying on R.E. v. N.Y. City Dep't of Educ., 694 F.3d 167 (2d Cir. 2012), the SRO found that a parent's challenges to an assigned public school are generally speculative and not an appropriate basis for unilateral placement when the student never attended the recommended placement. SRO Decision at 7-8. Citing a slew of cases, the SRO noted that "[w]hile some district courts have found that parents have a right to assess the adequacy of a particular school site to meet their children's needs, the weight of the relevant authority supports the approach taken here." Id. at 8 n.3. The SRO further found that
Id. at 9. The SRO therefore reversed the IHO decision directing the district to pay Q.W.H.'s tuition at Cooke. Id. at 10. Plaintiffs appeal the SRO Decision to this Court, and the parties have cross-moved for summary judgment.
"In considering an IDEA claim, a district court `must engage in an independent review of the administrative record and make a determination based on a preponderance of the evidence.'" C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 837-38 (2d Cir. 2014) (quoting Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007)). In undertaking this independent review, courts are "restrained by our lack of specialized knowledge and educational expertise; we must defer to the administrative decision particularly where the state officer's review has been thorough and careful." M.W. ex rel. S.W. v. N.Y. City Dep't of Educ., 725 F.3d 131, 138-39 (2d Cir. 2013) (internal quotations and alteration omitted); see also M.O. v. N.Y. City Dep't of Educ., 793 F.3d 236, 243 (2d Cir. 2015) ("While the district court must base its decision on the preponderance of the evidence, it must give due weight to the administrative proceedings, mindful that the judiciary generally lacks the specialized knowledge and experience necessary to resolve persistent and difficult questions of educational policy.").
Two factors guide the level of deference owed to the administrative opinions "the quality of the [administrative] opinion and the court's institutional competence." C.F. ex rel. R.F. v. N.Y. City Dep't of Educ., 746 F.3d 68, 77 (2d Cir. 2014). To determine whether the SRO's review has been appropriately thorough and careful, "courts must look to the factors that normally determine whether any particular judgment is persuasive, for example, whether the decision being reviewed is well-reasoned, and whether it was based on substantially greater familiarity with the evidence and the witnesses than the reviewing court." M.W., 725 F.3d at 139 (internal quotations omitted); M.O., 793 F.3d at 243 ("Deference is particularly appropriate when the state officer's review `has been thorough and careful,' but still we do not `simply rubber stamp administrative decisions.'" (quoting R.E., 694 F.3d at 184)). The "institutional competence" question hinges on whether a matter involves "`persistent and difficult questions of educational policy,'" C.L., 744 F.3d at 838 (quoting Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 208 (1982)), or "`issues of law,' such as `the proper interpretation of the federal statute and its requirements,'" Lillbask, 397 F.3d at 82 (2d Cir. 2005) (quoting Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1122 (2d Cir. 1997)) (alteration omitted).
A parent who is dissatisfied with a school district's proposed placement for his or her disabled child may enroll the child in private school and then seek tuition reimbursement from the state. "Parents who unilaterally place their child in a private school do so `at their financial risk.'" M.O., 793 F.3d at 243 (quoting Reyes ex rel. R.P. v. N.Y. City Dep't of Educ., 760 F.3d 211, 215 (2d Cir. 2014)). Whether the parent's request for reimbursement will be successful is determined by the so-called Burlington/Carter test, "which looks to (1) whether the school district's proposed plan will provide the child with a free appropriate public education; (2) whether the parents' private placement is appropriate to the child's needs; and (3) a consideration of the equities." C.F., 746 F.3d at 73; see also T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 152 (2d Cir. 2014) (citing Florence Cnty. Sch. Dist. Four v. Carter, 510 U.S. 7, 15-16 (1993)).
Prong one of the Burlington/Carter test requires the DOE to establish that the IEP was appropriate, i.e., that it would actually provide a FAPE. M.W., 725 F.3d at 135. "Under New York's Education Law § 4404(1)(c), the local school board bears the initial burden of establishing the validity of its plan at a due process hearing." M.O., 793 F.3d at 243. The first prong of Burlington/Carter involves "a two-part inquiry that is, first, procedural, and second, substantive." M.W., 725 F.3d at 139.
Plaintiffs' arguments in this Court implicate the first Burlington/Carter prong. The crux of Plaintiffs' appeal is a challenge to the appropriateness of DOE's proposed placement, although Plaintiffs also challenge, albeit fleetingly, the appropriateness of the 1211 special class staffing ratio that was recommended in Q.W.H.'s IEP. See generally Pls. Mem.
Plaintiffs argue that the SRO, in concluding that the IEP recommendation of 1211 program was appropriate, "erroneously equated the 122 program at Cooke (twelve students to two teachers) with a 1211 program (twelve students, one teacher, and a paraprofessional)." Pls. Mem. at 25. Plaintiffs insist that the SRO's conclusion contradicts the record. They argue that the second teacher at Cooke was a full-fledged teacher with at least a college education and that the presence of a second teacher was an important factor in Q.W.H.'s success at Cooke. Id. at 25. Plaintiffs also note that the IEP did not call for small group instruction as one of Q.W.H.'s needs and complain that a 1211 program would be substantially similar to the program that Q.W.H. attended during the first four years of elementary school during which she did not progress academically. Id. at 5.
Plaintiffs' argument that the SRO erred in finding that the IEP recommendation of a 1211 class staffing ratio was substantively appropriate cannot be sustained. Both the IHO and the SRO concluded that the 1211 special class recommendation was substantively appropriate and reasonably calculated to provide Q.W.H. with meaningful educational benefits. SRO Decision at 5-6; IHO Decision at 7. After a thorough review, the Court agrees.
The IHO's and SRO's conclusions that the 1211 special class program was appropriate for Q.W.H. were thorough, well-reasoned, and supported by the record. "`[D]eterminations regarding the substantive adequacy of an IEP should be afforded more weight than determinations concerning whether the IEP was developed according to the proper procedures.'" C.F., 746 F.3d at 77 n.7 (quoting M.H., 685 F.3d at 244). "Decisions involving a dispute over an appropriate educational methodology"—here, the adequacy of a 1211 special class staffing ratio—are subject to considerable deference. C.F., 746 F.3d at 77 n.7. Moreover, the Court's deference is particularly appropriate when, as here, the IHO and the SRO are in agreement. B.K. v. N.Y. City Dep't of Educ., 12 F.Supp.3d 343, 360 (E.D.N.Y. 2014). Accordingly, the Court reviews the SRO Decision deferentially as to her conclusion regarding the appropriateness of the 1211 class.
The SRO considered evidence from Cooke that Q.W.H. functioned well in a class of twelve students, typically staffed with a head teacher and a teaching assistant. SRO Decision at 5. The SRO noted that the CSE was aware that Q.W.H. was receiving some instruction in smaller groups but also noted that a 1211 special class allows for smaller group instruction at times. Id. at 6. The SRO noted that no one objected to the 1211 special class recommendation at the CSE meeting. Id. Similarly, the IHO concluded "that based on the testimony adduced at the hearing[,] . . . the IEP was . . . substantively appropriate and was crafted to meet the individual education needs of the student" and that the testimony of the school psychologist on the class size was "credible and not rebutted by the Parent." IHO at 7.
Although the Plaintiffs insist that the record supports their argument that Q.W.H.'s program at Cooke functioned as a 122 class, Pls. Mem. at 25, the SRO concluded that Q.W.H's program at Cooke "functioned, for all intents and purposes, as a 121+1 classroom." SRO Decision at 5. Giving due deference to the SRO, this Court is unconvinced that the difference between the alleged 122 program at Cooke and a 121+1 class is anything but negligible and is certainly not so substantial as to constitute the denial of a FAPE. The Court therefore upholds the SRO's determination that the 1211 special class recommendation was substantively appropriate and reasonably calculated to provide Q.W.H. with meaningful educational benefits.
The heart of Plaintiffs' appeal is that the SRO erred when she relied on R.E. v. N.Y. City Dep't of Educ., 694 F.3d 167 (2d Cir. 2012), to hold that a parent's challenge to a placement is, across the board, generally speculative and not an appropriate basis for unilateral placement if the student never attended the recommended placement. Since the SRO Decision, the Second Circuit decided M.O. v. N.Y. City Dep't of Educ., 793 F.3d 236 (2d Cir. 2015), and directly addressed this issue. Defendant argues that M.O. supports the SRO Decision, albeit on different grounds. Defendant concedes, as it must, that the SRO was wrong to hold that objections are across the board speculative and impermissible when a student does not attend the placement, but because Plaintiffs' objections did not challenge the capacity of P373K to implement Q.W.H.'s IEP, Defendants argue that the SRO's conclusion was correct that a unilateral placement was not justified. Def. Mem. at 2, 23-26.
The Second Circuit in M.O. made clear that "R.E. does not foreclose all prospective challenges to a child's proposed placement school" but instead "stands for the unremarkable proposition that challenges to a school district's proposed placement school must be evaluated prospectively (i.e., at `the time of the parents' placement decision') and cannot be based on mere speculation." M.O., 793 F.3d at 244 (emphasis in original). The Second Circuit further specified what constitutes a permissible challenge "[w]hile it is speculative to conclude that a school with the capacity to implement a given student's IEP will simply fail to adhere to that plan's mandates, it is not speculative to find that an IEP cannot be implemented at a proposed school that lacks the services required by the IEP." M.O., 793 F.3d at 244 (citations omitted).
M.O. also clarifies who bears the burden of showing that the proposed placement has the capacity to implement the student's IEP. If a student's IEP is substantively adequate, it is incumbent upon the parents to adduce some evidence that the school district would not have adhered to the IEP. See id. at 245-46; see also N.S. v. N.Y. City Dep't of Educ., No. 13-CV-7819 (VEC), 2014 WL 2722967, at *13 (S.D.N.Y. June 16, 2014) (holding that the school district discharges its initial burden of proof by establishing that a student's IEP is substantively adequate, and then the parents must establish that the school district would not have adhered to the written plan). Although the school district bears the ultimate burden of persuasion that the placement is appropriate, absent a challenge based on non-speculative evidence available at the time the parents opted out of the placement, "the school district [is] not required to present evidence regarding the adequacy of [the recommended placement] at the impartial hearing." M.O., 793 F.3d at 246.
As noted previously, the SRO rejected the Plaintiffs' challenge to the proposed placement as barred by R.E. SRO Decision at 6-9. The parties dispute the level of deference to be afforded the administrative proceedings. Plaintiffs urge that the SRO Decision is entitled to no deference because it misunderstood the Second Circuit's decision in R.E., issued no findings of fact, set forth no reasoning, and refused to perform any analysis of the appropriateness of the placement to P373K. Pls. Reply at 8-9. The Court agrees that the SRO Decision is entitled to no deference regarding the appropriateness of the proposed placement because it was decided based on an erroneous interpretation of R.E. Moreover, the SRO's one sentence that "assum[es] for the sake of argument" that the Plaintiffs could make their claims, provided only a cursory analysis that is neither thorough nor well-reasoned. SRO Decision at 9.
Plaintiffs urge this Court instead to give deference to the IHO Decision, which Plaintiffs argue reflects first-hand encounters with the witnesses, a correct interpretation of the law, and thorough consideration of the evidence in the record. Pls. Reply at 10-11. When a district court determines that the SRO decision is "inadequately reasoned," "a better-reasoned IHO opinion may be considered instead." R.E., 694 F.3d at 189. The Court is unconvinced, however, that the IHO Decision presents a well-reasoned opinion. The IHO failed to analyze whether the Plaintiffs' objections to the proposed placement as articulated in their DPC were, in actuality, permissible prospective challenges before it concluded that the DOE had failed to meet its burden to show that the placement was appropriate. IHO Decision at 7-8. More problematic, the IHO based her conclusion that the DOE had failed to offer an appropriate placement on an argument that Plaintiffs did not even raise in their DPC. In doing so, the IHO imposed on the DOE an obligation to present evidence even in the absence of a parent's non-speculative challenge to the placement's capacity to adhere to the IEP, a burden the Second Circuit disclaimed in M.O. Thus, the IHO also misapplied applicable law.
In any event, this particular aspect of Plaintiffs' challenge—whether they have presented permissible prospective objections to the placement—is an issue of law that must be reviewed de novo. Cf. M.O. v. N.Y. City Dep't of Educ., 996 F.Supp.2d 269, 271 (S.D.N.Y. 2014) (reviewing de novo, as an issue of law, whether a certain type of evidence is required for DOE to meet its burden of proof), aff'd, 793 F.3d 236 (2d Cir. 2015).
As previously discussed, Q.W.H.'s IEP was substantively adequate. Therefore, in order to challenge the placement, the parent must raise a non-speculative claim that the proposed placement would not have adhered to the IEP. R.E., 694 F.3d at 195; B.K., 12 F. Supp. 3d at 370-72.
Plaintiffs argue that the DOE's proposed placement denied Q.W.H. a FAPE because (1) "the proposed school had only one junior high school class in what was otherwise a high school;" (2) "the academic range of the students in the junior high class was too wide and too advanced to be an appropriate learning environment for Q.W.H.;" (3) "paraprofessionals, as opposed to teachers, did much of the teaching in the class;" and (4) no one, not even the DOE's rebuttal witness, confirmed that the school offered a 1211 class as required under Q.W.H.'s IEP. Pls. Mem. at 2. Plaintiffs argue that L.W.'s objections are not speculative insofar as they are based on what she saw when she visited P373K and what she was told by DOE personnel about the one sixth grade class in the school. Pls. Mem. at 22.
The Court disagrees—Plaintiffs' first three objections to P373K are exactly the type of objection that is foreclosed by R.E. and M.O. These objections are either based on L.W.'s personal belief that the school would have been inappropriate or are, in actuality, substantive attacks on the adequacy of the IEP couched as challenges to the placement.
Plaintiffs' contention that P373K was an inappropriate placement because it had only one junior high school class in what was otherwise a high school is an impermissible challenge because it does not relate to whether the school could implement the IEP, which is silent on the need for Q.W.H. to avoid an environment with older children. See M.O., 793 F.3d at 245 (holding that an objection that recommended placement was inappropriate because the parent said that the child would "shut down completely" if put there is a subjective concern that does not demonstrate the school lacked IEP-mandated services).
Plaintiffs' second concern is that the academic range of the students in P373K's sixth grade class was too wide and too advanced to be an appropriate learning environment for Q.W.H. This is also an impermissible prospective challenge. Plaintiffs' objection is based on her testimony that, during her visit, the Assistant Principal told her the students in the sixth grade class at P373K were at academic levels ranging from first to seventh grade. Tr. 185, 201. Defendants argue that this objection is not a challenge to P373K's capacity to implement Q.W.H.'s IEP because nothing in the IEP requires Q.W.H. to be grouped with students of largely identical academic abilities. Def. Mem. at 29.
Plaintiffs argue that because state regulations mandate that Q.W.H. not be placed in a class that exceeds a three year academic range, Pls. Reply at 7 (quoting 8 N.Y.C.R.R. §§ 200.6(h)(2)-(7)), the issue would not have been addressed in an IEP because it is "too obvious to state." Pls. Reply at 7. But the regulations on which Plaintiffs rely do not create the categorical bar that Plaintiffs urge. Section 200.6(h)(7) provides that
8 N.Y.C.R.R. § 200.6(h)(7). If Q.W.H. had enrolled at P373K, if the class had in fact included children with the broad range of achievement levels about which L.W. was concerned,
Plaintiffs' third objection is that the paraprofessionals, as opposed to teachers, would be teaching. This is also an impermissible prospective challenge. Plaintiffs' challenge is based on her belief that, during her visit, the Assistant Principal told her that the paraprofessional, not the teacher, would instruct the students. Tr. 202-03.
Fourth and finally, Plaintiffs argue that P373K is an inappropriate school placement because P373K does not have a 1211 sixth grade class available as mandated by Q.W.H.'s IEP. Pls. Reply at 3-5. Plaintiffs' concerns are based on L.W.'s observations when she visited P373K of the only class available for sixth graders, which she understood would have been Q.W.H.'s class. Tr. 198-200. L.W. testified that she observed only eight students, Tr. 198, and two adults (one teacher and another adult whom she believed was a paraprofessional), Tr. 199. Accordingly, Plaintiffs argue that L.W. observed an 811 program, and not the 1211 program mandated by Q.W.H.'s IEP. Pls. Reply at 1.
Plaintiffs did not raise this challenge in their DPC,
Putting aside whether Plaintiffs waived this argument as a technical legal matter by failing to raise it in their DPC, the IHO, who raised this issue sua sponte, did exactly what the M.O. court held was improper she imposed on the DOE the obligation to come forward with proof that P373K could comply with the IEP even though Plaintiffs had failed to raise a nonspeculative claim that P373K could not comply. The IHO appeared to be concerned that if there were no affirmative obligation on a school district to prove—in every case—that "the placement offered would be able to effectively implement the IEP . . . a school district could load up an IEP with all sorts of services and accommodations and never have to show that they were able to actually provide an appropriate placement." IHO Decision at 8.
The M.O. Court made clear that this cynical view of how public schools comply with IDEA is not correct. Absent a non-speculative claim that the recommended placement will not or cannot comply with the IEP,
Because the Court concludes that the DOE offered Q.W.H. a FAPE, the Court does not reach the second or third prongs of Burlington/Carter regarding the appropriateness of Cooke as a placement or whether the equities favor reimbursement.
For the foregoing reasons, Plaintiffs' motion for summary judgment is DENIED. Defendant's cross-motion for summary judgment is GRANTED. The Clerk of the Court is directed to enter judgment for Defendant, to terminate Dkt. 15 and Dkt. 23, and to terminate the case.
If there are factual concerns with whether a placement can comply with the IEP, the onus has to be on the parents in the first instance to communicate those concerns to the DOE and to request a response if there are facts that would make the difference between accepting the placement and unilaterally rolling the dice on tuition reimbursement. That said, this Court adds its voice to the voice of other judges, see, e.g., T.F., 2015 WL 5610769, at *6, who have encouraged DOE to adopt procedures to respond to factual concerns about a placement so that the parents have the facts and are not operating under a misunderstanding regarding the capacity of the recommended placement before they commit themselves to private school tuition that may not be reimbursed. Although this Court understands that, for some parents, tuition reimbursement is "nice to have," but they are going to send their children to private school regardless, for other parents, the stakes are higher because they cannot afford to send their child to private school if reimbursement is denied. In any event, parents are entitled to make decisions based on a correct factual understanding of what the district is proposing, and that requires the DOE to be more responsive when such concerns are raised.
