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FINDINGS OF FACTS & DECISION - DOE DEFAULT & INQUEST
Case Number: 190379
NYS Identifier Number N/A
Student’s Name:
District:
Hearing Requested By: Parent
Dates(s) of Hearing: 01/15/20
Actual Record Close Date: 06/08/20
Hearing Officer: Edgar De Leon
NAMES AND TITLES OF PERSONS WHO APPEARED
Name Title For Date DOE Representative DOE 01/15/20 Attorney PARENT 01/15/20
Mother PARENT 01/15/20
PARENT 01/15/20
Private School PARENT 01/15/20 (A)
On October 28, 2019, I was appointed the Impartial Hearing Officer (“IHO”) to conduct an impartial hearing pursuant to the Individuals with Disabilities Education Act ( “IDEA”), 20 USC § 1415(f)(3), Article 89 of the New York State Education Law, Part 200 of the Regulations of the New York State Commissioner of Education and Section 504 of the Rehabilitation Act of 1973, concerning a dispute between the Parent of a year old student attending a private school and the New York City - Department of Education (“DOE”) - , regarding the student’s special education program.
After having adjournments granted at the request of and with the consent of the parties, or for good cause, the impartial hearing was held on January 15, 2020. A list of the persons appearing at the hearing but not of the documents received in evidence in annexed hereto.
BACKGROUND
This case was initiated as the result of a written Due Process Complaint (“DPC”)
made by the student’s Parent via her attorney(s), and received at the Department of Education Impartial Hearing Office (“DOE-IHO”) on or about October 24, 2019. The DPC is carried under New York City (“NYC”) .
The Parent in this case alleges that the student has been denied a “free and appropriate public education” (“FAPE”) for the 2019-2020 school year. At the impartial hearing, the Parent seeks the following relief:
(a) Reimbursement of the private school tuition from September 1, 2019 through June 30, 2020 including reimbursement of monies paid to date and any payments made in the future, including tuition, additional tuition costs of the , combined activity / accident insurance / parent’s association dues fee, and bookstore fees; and
(b) Payment of the cost of evaluations: ’s Psycho-educational Evaluation from May/June 2019; and
(c) Costs and fees; and
(d) Any additional such relief as the IHO determines is appropriate.
THE DOE’S CASE
The DOE did not call any witnesses to testify on its behalf, did not submit documents in evidence and did not object to the Parent’s. (T-6-7 & 9-10) The testamentary and documentary evidence for and against the DOE’s case in default is incorporated in the decision below.
THE PARENT’S CASE
The Parents called (2) witnesses to testify on her behalf, who testified on direct examination via affidavit pursuant to 8 NYCRR 200.5[j][3][xii][f]. (P-I) The DOE declined to cross examine the affiant. (T-10) The Parent also submitted (9) documents in evidence. The testamentary and documentary evidence for and against the Parent’s case is incorporated in the decision below.
FINDINGS OF FACTS & DECISION - DOE DEFAULT & INQUEST
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, 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 IEP 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 parent’s 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 Parents 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 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 IEP 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; M. C. 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 [1st Cir. 1984], aff'd, 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 IEP (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 IEP, 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 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][C][ii] and 34
C.F.R. § 300.148)
Here, the DOE did not call any witnesses to testify on its behalf and did not submit any documents in evidence. Accordingly, the DOE has defaulted on its statutory obligation and I find that the student was denied a FAPE for the 2019-2020 school year.
I now turn to the question of whether the DOE should be required to reimburse and/or pay for the private educational services and relief requested for the student, because the services offered by the DOE were inadequate or inappropriate, and the relief sought and services selected by the Parents are appropriate and equitable considerations support the Parents’ claim. (Burlington, Florence and Cerra, Supra) The Parent need only demonstrate that the requested services are specially designed to meet the unique needs of the student, supported by such services as are necessary to permit him to benefit from the instruction. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65)
A private school placement must be "proper under the Act." (See Carter, 510 U.S. at 12, 15 and Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs. (See Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129 and Matrejek, 471 F. Supp. 2d at 419)
A Parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement. (See Carter, 510 U.S. at 14) The private school need not employ certified special education teachers or have its own IEP for the student. (See Carter, 510 U.S. 7; SRO No. 08-085; 08-025; 08-016; 07-097; 07-038; 02-
014 and 01-105) Parents also need not show that the placement provides every special service necessary to maximize the student's potential. (See Frank G., 459 F.3d at 364-
65) When determining whether the Parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits." (See Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]])
There is no specific request for compensatory educational services in this case and in either case, an IHO cannot determine the amount of compensatory education that a student requires unless the record provides him with sufficient “insight about the precise types of education services the student needs to progress.” (Mary McLeod Bethune Day Acad. Pub. Charter Sch., 555 F. Supp. 2d 130, 50 IDELR 134 [D.D.C. 2008] citing Branham v. District of Columbia, 427 F.3d 7, 44 IDELR 149 [D.C. Cir. 2005]) Pertinent findings to enable an IHO to tailor the ultimate award to the student’s unique needs should include the nature and severity of the student’s disability, the student’s specialized educational needs, the link between those needs and the services requested, and the student’s current educational abilities. (See Branham v. District of Columbia, 427 F.3d 7, 44 IDELR 149 [D.C. Cir. 2005], see also Mary McLeod Bethune Day Acad. Pub. Charter
Sch., 555 F. Supp. 2d 130, 50 IDELR 134 [D.D.C. 2008]) The Parent has the burden of “propos[ing] a well-articulated plan that reflects the student’s current education abilities and needs and is supported by the record.” (See Phillips v. District of Columbia, 2010 WL 3563068, at *6, 55 IDELR 101 [D.D.C. Sept. 13, 2010] quoting Friendship Edison Pub. Charter Sch. Collegiate Campus v. Nesbitt (“Nesbitt II”), 583 F. Supp. 2d 169, 172, 51
IDELR 125 [D.D.C. 2008])
State regulations provide in relevant part that "[t]he decision of the impartial hearing officer shall be based solely upon the record of the proceeding before the impartial hearing officer and shall set forth the reasons and the factual basis for the determination. (See 8 NYCRR 200.5[j][5][v])
Shaffer decision of the Supreme Court of the United States issued on November 14, 2005, held as follows:
“We hold no more than we must to resolve the case at hand: The burden of proof in an administrative hearing challenging an IEP is properly placed upon the party seeking relief. In this case, that party is Brian, as represented by his parents. But the rule applies with equal effect to school districts: If they seek to challenge an IEP, they will in turn bear the burden of persuasion before an ALJ.
The judgment of the United States Court of Appeals for the Fourth Circuit is, therefore affirmed.” (Supra, III, ¶2) (See Schaffer v. Weast, 546 U.S. 49, 58-
62 [2005] (emphasis added)
Here, for the reasons stated above, the DOE did not meet its burden under the law. (Supra) I find that the student has been denied a FAPE for the 2019-2020 school year.
A gross violation of the IDEA may result from the denial of, or exclusion from, educational services for a substantial period of time. (See SRO No. 04-074, citing Mrs.
C. v. Wheaton, 916 F.2d 69 (2d Cir. 1990), Burr v. Ambach, 863 F.2d 1071 (2d Cir.
1988) and SRO No. 02-047.) In Burr, exclusion from educational services for a substantial period of time was defined as “almost two years.” (See SRO No. 02-033 citing Burr “…after a severely disabled student's school was closed, prolonged delays in the administrative proceedings in obtaining a new placement resulted in a complete exclusion from any educational placement for the student for almost two years.” I do not find that the violation in this case meets the standard of a “gross violation” of FAPE.
I now turn to the question of whether the relief sought by the Parent is appropriate. As noted above, the DOE may be required to reimburse and/or pay for the private educational services and relief requested for the student, because the services offered by the DOE were inadequate or inappropriate, and the relief sought and services selected by the Parents are appropriate and equitable considerations support the Parent’s claim. (Burlington, Florence & Cerra, Supra) As previously noted, the Parent need only demonstrate that the requested services are specially designed to meet the unique needs of the student, supported by such services as are necessary to permit her to benefit from the instruction. (Gagliardo & Frank G., Supra)
In sum, substance and relevant part, the evidence in this case is as follows: The first witness for the Parent is the Director of the private school “ ” program. (T-
13) She testified that the their academic support program where they meet with students before and after school in small groups, focus largely on executive functioning, organization, preparing for the day, reviewing homework questions, tests and quizzes, and then in the afternoon, they have a small group study hall where they get the students started on homework and prioritizing their assignments.
(T-14) They also meet with the students twice a week, individually for 40-minute sessions and focus on whatever specific skills that the student needs at the time. (T-15)
The witness testified that all the teachers either have a master's degree in special education, or in a specialty area like literacy. (T-17) This is the student’s first year in the program. (T-18 & P-E) When reading through the student’s evaluation, she saw he had learning disabilities in reading, writing, and math, with ADHD, dysgraphia, and adjustment disorder. (T-20) The teachers were using a curriculum called “The Writing Revolution” with the student that teaches basic writing, as well as single-paragraph outlines, multi-paragraph outlines, consistency and repetition in the graphic organizers that are being used that are helping to organize the student’s thoughts and ideas when writing. (T-20-1) The student’s teachers say he made a lot of progress, specifically with his being able to be redirected and planning out assignments, his writing has become more organized. (T-23-4)
On cross examination, the witness testified that the mornings and afternoons are not specific instructional time. (T-27) She agreed that there are many students in the private school that do not have a disability. (T-30) There was no substantive testimony developed during the witness’ re-direct examination or re-cross examination. (T-30-3)
I find that the record above sufficiently establishes that the private school is an appropriate placement for the student’s 2019-2020 school year. There is nothing in the record that supports a finding the Parents have not cooperated with the DOE. For all of the reasons stated herein, I find that the Parents’ are entitled to the relief they seek.
NOW therefore, it is hereby
ORDERED upon the DOE’s DEFAULT and after INQUEST that upon its receipt of reasonably satisfactory proof of services having been rendered, the DOE shall either reimburse the Parents and/or direct pay the cost of the student’s tuition, which includes the costs of the , combined activity/accident insurance/parent’s association dues fee, and bookstore fees, and that the DOE shall pay the cost of the independent evaluation by ’s which shall need exceed the cost of the reasonable and fair market rate for such an evaluation in New York City; and it is further
ORDERED upon the DOE’s DEFAULT and after INQUEST that the DOE shall immediately conduct evaluations of the student in all areas of his suspected disabilities not evaluated within the last two years, for the 2020-2021 school year; and it is further
ORDERED upon the DOE’s DEFAULT and after INQUEST that the DOE shall forthwith reconvening the CSE after the completion of the student’s evaluations and consider those evaluations and any other relevant information and produce a new IEP for the student’s 2020-2021 school year; and it is further
ORDERED upon the DOE’s DEFAULT and after INQUEST that any of the other relief sought by the Parent not addressed by this decision is found to be either agreed upon by the parties, withdrawn by the Parent, outside the scope of the IHO’s authority or unsupported by the record.
DATED: June 17, 2020 _____________________________
New York, New York Edgar De Leon - IHO
PLEASE TAKE NOTICE
The parent and/or the New York City Department of Education has a right to obtain a review of this decision by a State Review Officer of the New York State Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act. Directions and forms can be found on the Office of State Review website: http://www.sro.nysed.gov/RevisedRegulationsOverview.html
DOCUMENTATION ENTERED INTO RECORD
Number/Letter Title Dated For # of Pages
N/A N/A N/A DOE N/A
A IHR 10/24/19 PARENT 05
B Psychoeducational Evaluation 06/04/19 PARENT 26
C 10-Day Letter 08/20/19 PARENT 01
D Program Description undated PARENT 03
E School Schedule 09/19/19 PARENT 01
F School Report 06/20/19 PARENT 17
G School Contract 07/03/19 PARENT 04
H School Invoice 07/12/19 PARENT 01
I Affidavit of Tuition undated PARENT 03
N/A N/A N/A IHO N/A