Impartial Hearing Decision

DECISION ORDER Case Number: 185209 Student’s Name: Hearing Requested By: . . Parents Hearing Officer: Martin J. Kehoe If, Esq.

Introduction

Hearing Officers’ Findings of Fact and Decision Case No. 185209 This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (HO) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the New York State Education Laws. I was appointed the Impartial Hearing Officer (“THO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f} and Article 89 of the Education Law of the State of New York. The School District will be referred to as “District,” the parents as “Parents,” the student will be referred to as “Student” and the private school as the “School.” This is a reimbursement case. Hearing sessions were held on September 27, 2019, October 17, 2019, December 17, 2019, and March 24, 2020.

Overview

Hearing Officers’ Findings of Fact and Decision Case No. 185209 In this Decision and Order I will briefly outline the positions of the parties and review some student history and will then move to apply a three-prong analysis to this case, examining first, whether the District met its burden to demonstrate the appropriateness of their program; second, whether the Parents met their burden to demonstrate the appropriateness of the placement at the School, and third, whether equitable considerations favor the District or the Parents in this matter.

Parents’ Position

Hearing Officers’ Findings of Fact and Decision Case No. 185209 In the Hearing Request, the Parents allege that the District failed to offer the Student a Free and Appropriate Public Education (FAPE) for the 2019-2020 school year. The allegations include that the District failed to conduct: an TEP meeting and/or. to offer an appropriate non-public school placement prior to the 2019-2020 school year. (Ex. A003-004). The Parents sought relief that includes the funding of the Student's placement at the Private School for the Summer of 2019- 2020. (Ex. A004-005). Apparently, all previous private school tuition was provided by the District (See, Parent’s affidavit (Ex. N paragraph #10)).

District’s Position

As we commenced the December 17, 2019 hearing, the District indicated, via an opening statement, that they did not intend to present a case; they submitted no documents into evidence and then rested on Prong I of the Burlington analysis. (Tr. 22-3). Parents’ attorney sent an email to this [HO and the District on April 28, 2020, which included the completed affidavits of testimony from the Parents and the School. Parents requested that the District inform the Parents by May 1, 2020 regarding whether the District wished to cross-examine the witnesses. To date, I am unaware of a response from the District and therefore J move to this decision.

Student Profile

Hearing Officers' Findings of Fact and Decision The Student was enrolled at the Private School in the twelfth grade for the 2019-2020 school year. The Student has diagnoses including a brain tumor at the anterior skull base (high grade undifferentiated carcinoma with focal neuroendocrine differentiation) and unspecified adverse effect of drug or medicament (late effect of chemotherapy). The Student also has diagnoses of Generalized Anxiety Disorder (Severe), ADHD, and Specific Learning Disorder with impairment in mathematics, and has been classified with a Learning Disability by the CSE. (Ex. B003-004). The Student’s November/December 2017 neuropsychological evaluation indicates at least average or above intellectual potential, with evidence of significant anxiety and fluctuations in the areas of attention and executive functioning also impacted by the Student’s treatment for a significant and traumatic medical condition. (Ex. B004). At that time, the Student was recommended for continued placement in a full-time therapeutic school with an appropriate peer group and in an environment conducive to her learning. The Student required a program with a small class size (5-10 students) and a low student to teacher ratio. (Ex. B004). The Student’s neuropsychological evaluation also pointed to the need for full-

Hearing Officers’ Findings of Fact and Decision time access to clinically directed supports and interventions during the school day as well as continuation of outside therapies. (Ex. B004-005). Prior to the start of the 2019-2020 school year, the Private School’s Clinical Director recommended the Student for twelve months of services due to her significant absences related to her medical diagnosis. Ex. E001. Also, see Affidavit of Testimony of The Clinical Director. Ultimately, the Student’s deficit of course credits impeded her from graduating in June 2019, and the Student required continuation of her program into Summer 2019 in order to graduate on time. (Ex. E001).

Analysis

A board of education may be required to reimburse parents for their expenditures for private education services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. Florence County Sch. Dist. Four v. Carter. 510 U.S. 7 (1993); Sch. Comm. Of Burlington v. Dep’t. of Educ., 471 U.S. 359, 369-70 (1985).

Prong I

IDEA ensures that students with disabilities are afforded a free and appropriate public education (“FAPE”). (20 U.S.C. § 1400 & Schaffer v. Weast, 126 S.Ct. 528 [2005]). A FAPE includes special education and related services designed to meet the student’s unique needs,

Hearing Officers’ Findings of Fact and Decision provided in conformity with a comprehensive written IEP. (20 U.S.C. 1401(8) & 141(d) and 34 C.F.R. § 300.13). The burden of proof in an administrative hearing challenging an JEP is properly placed upon the party seeking relief. (Schaffer, 126 S.Ct. 528,537) The DOE may be required to reimburse parents for their expenditures for private educational services obtained for a student, if the services offered by the DOE were inadequate or inappropriate, the services selected by the parents are appropriate and equitable considerations support the parents’ claim. (Sch. Comm, Of Burlington v. Dept. of Educ., 471 U.S. 359 (1985), Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993), Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2nd Cir, 2005]) The first step is to determine whether the DOE offered to provide the student a FAPE. (Mrs. C. v. Voluntown, 226 F.3d 60, 66 [2nd Cir. 2000]). A FAPE is offered to a student when (a) the DOE complies with procedural requirements set forth in IDEA and (b) the IEP developed by the CSE through the procedures set forth in IDEA, is reasonably calculated to enable the student to receive educational benefits. (Bd. Of Educ, V. Rowley, 458 U.S. 176, 206-7 [1982)). The student’s recommended program must also be provided in the least restrictive environment (“LRE”). (20 U.S.C. § 1412(a)(5)(A), 34 C.F.R. § 300.550(b), 8 NYCRR §200.6(a)[1]). The Parent bears the burden of showing that the private school placement selected is appropriate. (SRO Nos.: 95-57, 94-29 & 93-34), The Parent must show that the private school placement offers an educational program that meets the student’s special education needs. (Burlington, 471 U.S. at 370 & SRO No. 94-20). The private school need not be approved by Hearing Officers’ Findings of Fact and Decision the state educational agency to provide instruction to children with disabilities. (Florence County School District Four et. al. v. Carter, 510 U.S. 7 [1993]). It is also not required that the private school employ certified special education teachers or have its own JEP for the student. (SRO No. 94-20). Finally, the IHO must consider whether equitable considerations favor the Parents' request for tuition reimbursement. State Review Officer (“SRO”) Decision 06-004 holds: Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; MC. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the. appropriate and reasonable level of reimbursement that should be required"}). Such considerations "include the parties’ compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties’ positions, and like matters” (Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [ist Cir. 1984], affd, 471 U.S. 359 [1985]). With respect to equitable considerations, a parent may be denied tuition reimbursement upon a finding of a failure to cooperate with the CSE in the development of an IEP or if the parent's conduct precluded the CSE's ability to develop an appropriate [EP (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 86 [3rd Cir. 1999]; see Application of the Bd. of Educ., Appeal No. 04-102; Application of the Bd. of Educ., Appeal No. 04-026). In the absence of evidence demonstrating that petitioners failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate LEP, or failed to give proper notice, equitable considerations generally support a claim of tuition reimbursement. (Application of a Child with a Disability, Appeal No. 04-049). In Burlington, the Court found that Congress intended retroactive reimbursement to Parents by school officials as an available remedy in a proper case under the IDEA. (Burlington, 471 U.S. at 370-71, Gagliardo v. Arlington Cent. Sch. Dist, 489 F.3d 105, 111 (2d Cir. 2007] and Cerra

Hearing Officers' Findings of Fact and Decision v. Pawling Cent. Sch. Dist, 427 F.3d 186 at 192 [2d Cir. 2005]). “Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance” had it offered the student a FAPE. (Burlington, 471 U.S. at 370-71, 20 U.S.C. § 1412[a][10][CIfii] and 34 C.F.R. § 300.148). The District admitted no documents in evidence and produced no witnesses for the hearing. I find that the District did not meet its burden of proof and did not show that its recommended program is reasonably calculated to confer educational benefits. See Bd. of Educ. v. Rowley, 458 U.S. 176 (1982); Endrew F. ex rel. Joseph F. v Douglas Cty. Sch. Dist, RE-1, 137 8. Ct. 988, 1001, 197 L. Ed. 2d 335 (2017).

Prong II

J must now consider whether the Parents met their burden of proving the appropriateness of the placement of the Student at the School. On Prong II, New York federal courts have held that parental placements are “subject to fewer constraints than that applied to the school authorities.” Schreiber v. E. Ramapo Cent. Sch. Dist., 700 F. Supp 529 [S.D.N.Y. 2010] The Second Circuit has clearly stated: “... [P]arents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides cducational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.” Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 [2d Cir. 2007] quoting Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d Cir. 2006].

Hearing Officers' Findings of Fact and Decision Moreover, parents "may not be subject to the same mainstreaming requirements as a school board.” Frank G. v. Bd. of Ed. of Hyde Park 459 F. 3d 356 (2d Cir. 2006) quoting M.S. v. Bd. of Ed. of City Sch. Dist. of Yonkers, 231 F.3d 96, 105 [2d Cir. 2000] citing Warren G. v. Cumberland County Sch. Dist. 190 F.3d 80, 84 [3d Cir. 1999] (holding that "the test for the parents’ private placement is that it is appropriate, and not that it is perfect"). The Student made good progress academically at the School (see Affidavit of Testimony of the Clinical Director, pp. 4-5; Affidavit of Testimony of the Parent, pp. 4-5). The written testimony of the Clinical Director who is familiar with the Student and the School, convinced me that the education and related services offered at the School were an appropriate fit for the Student.

The Private School and the Student’s Performance There

The Clinical Director described the School and the Student’s individual program there. (See, Affidavit of Testimony of the Clinical Director; Ex. L). The Clinical Director testified that the School is a college preparatory program for bright adolescents and offers as-needed therapeutic supports with licensed psychologists who are trained in evidence-based therapies for ADHD, Anxiety, and mood disorders. (See, Affidavit of Testimony of the Clinical Director, p. 2) The Clinical Director further testified that based upon the Student’s evaluative, clinical and educational history, she felt confident that the School had the appropriate supports to help Student develop a better relationship with school and make progress academically and emotionally. (See, Hearing Officers’ Findings of Fact and Decision Affidavit of Testimony of the Clinical Director, p. 3). The Student’s class size ranged from seven to twelve students, with peers who had similar cognitive and social-emotional functioning as Student, and Student received a schedule that was tailored to her unique academic challenges and abilities. (See, Affidavit of Testimony of the Clinical Director, pp. 4-5). Further, the Student was provided with access to a full-time Learning Specialist as well as individual/small group work with teachers based upon her need, as well as after-school study supports and a Google Chromebook during the day to aid in her organization and executive functioning weaknesses. Jd. The Student was also able to excuse herself to the Counseling Center at any time during the day to meet with a psychologist, and she had scheduled advising groups three times per day, focusing on executive functioning, interpersonal and coping skills, goal-setting, discussing weekly feedback, and future planning. See, Affidavit of Testimony of the Clinical Director, p. 5) Having reviewed the recommendations of the professionals who have worked with the Student, and having considered the School and its offerings, I find that the School was a good fit for the Student, Furthermore, I find that the Student made progress at the School. Having made these findings and in light of the fact that the District did not raise any objections to the witness testimony, I resolve Prong II in favor of the Parents.

Prong III

Hearing Officers’ Findings of Fact and Decision A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents where equitable considerations support the parents’ claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85: T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires {a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C] [ii]; 34 CFR 300.148). The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404/1 ][c]; see R.E., 694 F.3d at 184-85; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at 7 [S.D.N.Y. Aug. 27, 2010]). Tuition reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the child from public school, or by written notice ten business days before such removal, “that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense." (20 U.S.C. §

Hearing Officers’ [a}[1O][C][iii][1] ; see 34 C.F.R. § 300.148[d]) This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools." (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [ist Cit. 2004]). In a ten-day notice letter to the CSE dated August 20, 2018, the Student’s Parents stated that if the CSE was not able to offer an appropriate program and placement in a timely manner, they would seek funding for the School. Ex. I -001. The record shows that the Parents fully cooperated with the District, and the District did not raise any objections to Prong III. As such, I find for the Parents regarding Prong II].

ORDER

It is therefore ORDERED 1. The District shall provide reimbursement of tuition for Student’s enrollment at the Private School for the time period ranging from the Student’s first day of attendance on July 1, 2019 to July 26, 2019, pursuant to 20 U.S.C. §1415(i)(2)(C)(iii), §1439(a)(1), et al., including monies paid to date and/or in the future and after presentation of appropriate documentation establishing the tuition amounts. U.S.C. §1415()(2)(C) iii), §1439(a)(1), et als; Dated: August 28, 2020 ‘ MARTA }. KEHOE III, ESQ. Impartial Hearing Officer MIK:Is

NOTICE OF RIGHT TO APPEAL

Hearing Officers' Findings of Fact and Decision Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act. If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed. An appealing party's request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov,