New York City Department of Education, Impartial Hearing Decision

HEARING OFFICER DETERMINATION AND ORDER

In the Matter of a Complaint Pursuant to Part 200 of the Regulations of the Commissioner of Education regarding,

STUDENT^[1], a minor, by and through his/her Parent(s),

-against-

DISTRICT

INTRODUCTION AND PROCEDURAL BACKGROUND

On June 19, 2020, the District (sometimes referred to as “DOE”, “LEA”) appointed the undersigned to act as the impartial hearing officer (hereinafter, “IHO”) in a case brought under the Federal Individuals with Disabilities Education Act [20 USC § 1415(f)(3)] (hereinafter, “IDEA”) and the applicable provisions of the Regulations of the Commissioner of Education [8 NYCRR 200.5] (hereinafter, “Regulations”) by the parent(s) of the Student.

A substantive fact-finding hearing was conducted in the instant matter wherein testimony and evidence was collected^[2].

It is important to note that this matter has been pending beyond the original compliance timeline set forth by the Regulations. As was necessary and upon the application of the parties, the compliance deadline was extended to allow sufficient time for the parties to investigate the possibility of settlement and prepare for hearings. As was described on the record, these extensions were made only after careful consideration of the cumulative impact of the criteria set forth within the regulations (8 NYCRR § 200.5(j)(5)(ii)).

FINDINGS OF FACT

The Department of Education in this matter did not present any witnesses or evidence in this matter. The District was reminded of their burdens relative the relief being sought by the parent and the District, again, restated their desire to rest without presenting any witnesses or evidence. In the instant matter, the Parent’s presented evidence more particularly itemized elsewhere in this report including direct examination by affidavit of both the Supervisor and the Parent (Exhibits O and P, respectively). Said affidavits are incorporated by reference into this decision.

Specifically, the testimony of the supervisor states that the small class, intensive level of support, related services, all came together to allow him to make meaningful progress, both academically as well as behaviorally, learning self-regulation, how to become part of a classroom, and how to control behaviors which were impacting his ability to learn.

CONCLUSIONS OF LAW

The purpose of the IDEA is “to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs.” (Bd. Of Educ. V. Rowley, 458 U.S. 176, 179-91 (1982)) Implicit in the congressional purpose of providing access to a free and appropriate public education (hereinafter “FAPE”) is the requirement that the education to which access is provided be sufficient to confer some educational benefit upon the handicap child. (Id.)

Pursuant to 20 U.S.C. §1401(9) and 34 C.F.R. §300.17 FAPE is defined as follows:

Special Education and related services that are provided at public expense under public supervision and direction and without charge; meet the standards of the SEA… include an appropriate preschool, elementary school, or secondary school education in the State involved; and are provided in conformity with the individualized education program (IEP).

In deciding whether the Respondent provided a student with a FAPE, the inquiry is typically: (1) whether the Respondent complied with the procedures set forth in IDEA; and (2) whether the student’s IEP is reasonably calculated to enable the student to receive educational benefit (Rowley, supra.). Under the second prong, a school district need not maximize the potential of child but must open the door of public education in a meaningful way, and the IEP must provide the opportunity for more than only a “trivial advancement” (P. v. Newington Bd. Of Educ., 546 F.3d. 111 (2nd Cir. 2008)).

The IEP is “the centerpiece of the statute’s education delivery system for disabled children” (Honig v. Doe, 484 U.S. 305, 311 (1988)). An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides appropriate specialized instruction and related services (see 34 C.F.R. §300.320 (a)) For an IEP to be “reasonably calculated to enable the child to receive educational benefits,” it must be “likely to produce progress, not regression” (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998)).

Additionally, each public agency must ensure that, as soon as possible following the development of an IEP, special education and related services are made available to the child in accordance with the child’s IEP. In order to implement the IEP, a team that includes the child's parents determines where the child should be placed based on the child's IEP. Thus, the placement should not dictate the IEP but rather the IEP determines whether a placement is appropriate. (Rourke v. District of Columbia, 460 F.Supp.2d 32, 44 (D.D.C. 2006)).

The DOE must ensure that the IEP team reviews a student’s IEP periodically, but not less than annually, to determine whether the annual goals for the child are being achieved. Moreover, the DOE must ensure that the IEP team revises the IEP, as appropriate, to address any lack of expected progress toward the annual goals; and the results of any reevaluation or information about the child provided to, or by, the parents. Additionally, if the parent obtains an independent educational evaluation (“IEE”) at public expense, or shares with the public agency an evaluation obtained at private expense, the school district must consider the results of the evaluation, if it meets agency criteria, in any decision made with respect to the provision of FAPE to the child. The IDEA mandates that an IEP be based on the results of the most recent evaluation of a student.

In determining the appropriate placement for a child, preference is given to the least restrictive environment and the appropriate schools nearest the child's home (Id.). The IDEA requires that unless the IEP of a child with a disability requires some other arrangement, the child is to be educated in the school that he or she would attend if the student was otherwise not disabled. In selecting the least restrictive environment, consideration is given to any potential harmful effect on the child or on the quality of the services that he or she needs. A child with a disability is not removed from education in age appropriate regular classrooms solely because of needed modifications in the general education curriculum (See 34 C.F.R. § 300.116).

When developing the IEP, the District will have evaluations of the child, as a procedural safeguard the parents are entitled, as a matter of law, an independent education evaluation (IEE) at public expense (34 CFR § 300.502)

Where a school system fails to provide special education or related services to a student with a disability, the student is entitled to compensatory education, “i.e., replacement of educational services the child should have received in the first place” (Reid v. District of Columbia, 401 F.3d 516 (D.C. Cir. 2005). An award of compensatory education “should aim to place the disabled children in the same position they would have occupied but for the school district’s violations of IDEA” (Id.). Compensatory education is a remedy for “past deficiencies” therefore a finding as to whether a student was “denied a FAPE in the relevant time period is a necessary prerequisite to a compensatory education award.” (Peak v. District of Columbia, 526 F. Supp. 2d 32 (D.C. Cir. 2007).

Pursuant to New York Education Law §4401(c)(1) the DOE shall have the burden of proof, the burden of persuasion, and the burden of production in impartial hearings except for instances where the parent is seeking tuition reimbursement for a unilateral parental placement and in those cases the parent shall have the burden of persuasion and the burden of production as to the appropriateness of the placement. The burden of proof in matters such as this shall only be met upon a fair preponderance of the evidence. The preponderance of the evidence standard requires that the trier of fact to find that the existence of a fact is more probable than its nonexistence (Concrete Pipe & Products of California, Inc. v. Construction Laborers Pension Trust for Southern California, 508 U.S. 602, 622 (1993)).

Unlike other standards of proof, the preponderance-of-evidence standard allows both parties to share the risk of error in a roughly equal fashion, except that when the evidence is evenly balanced, the party with the burden of persuasion must lose (Director, Office of Worker’s Compensation Programs v. Greenwich Collieries, 512 U.S. 267, 281 (1994)).

DISCUSSION

PROVISIONING OF FAPE

The District in this matter elected not to present any witnesses or evidence in their case and chief. As a general matter of jurisprudence, the party with the burden of proof has the duty and obligation to prove or disprove a disputed fact. The DOE by failing to present any witnesses in this matter has failed to meet their burden in establishing that a FAPE was offered to the Student and thus has, in effect, conceding every point alleged by the parent against them.

This position is neither new nor novel within the framework of the Regulations of the Commissioner of Education. The SRO has also found that allegations that are left unchallenged are deemed as true. (See Application of a Student with a Disability, 01-044). While not controlling in these matters, the SRO decision merely illustrates the basic legal tenet that the party who bears the burden also bears the obligation to prove or disprove a disputed fact.

Therefore, as a practical matter this IHO adopts as proven the allegations more particularly described and made in the amended due process complaint dated January 6, 2020

APPROPRIATENESS OF THE UNILATERAL PLACEMENT

With respect to the relief of tuition reimbursement, the regulations and case law are quite clear, the parent’s shoulder the burden of proving that the unilateral placement for the Student is appropriate. The case law that has developed is equally clear that this appropriateness of the unilateral placement is not as rigid as the Rowley standards for the District, the parent’s however must still prove that the unilateral placement is sufficiently unique to address the unique needs of the Student. The private school need not be approved by the state educational agency to provide instruction to children with disabilities. Florence County 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). The Parents need only demonstrate that the requested services are specially designed to meet the unique needs of the student. (See Gagliardo v. Arlington CSD, 489 F.3d 105, 112; see Frank G., 459 F.3d at 364- 65). Taking this one step further, the unilateral placement must not be a “one size fits all” approach but tailored to address the unique needs of the student and that this tailored instruction must show some benefit for the Student.

Applying this standard, the preponderance of the evidence in this record amply supports a finding that the Student’s program at the unilateral placement for the 2019-2020. The Supervisor and the Parent testified credible as to the student’s progress in the Student’s program and how that program was sufficiently customized to the Student’s needs.

EQUITIES

With respect to the relief of tuition reimbursement an assessment must be made as to equitable determinations. This determination, in essence, is whether or not the parent’s acted in good faith with the district. Much like the District is required to not “pre-determine” a plan or placement before the IEP meeting, so too are the parents required not to “pre-determine” a particular placement of their child. This requirement embodies the idea that the CSE meeting is meant to be a collaborative approach where all parties are participating meaningfully.

No evidence was offered to this IHO to determine that equities do not favor the Parent.

ORDER

BASED ON THE FOREGOING, IT IS,

ORDERED that the District has failed to provide a FAPE for the 2019-2020 school year; and it is further,

ORDERED that the District is to pay the Placement tuition expenses for the 2019-2020 school year.

Dated: November 30, 2020

Garden City, New York

Jeffrey Guerra, Esq.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

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.

Footnotes

[1] Personally identifiable information is attached as an appendix to this decision and must be removed prior to public distribution.

[2] Included as part of the record, and herein incorporated by references are lists of all evidence collected with regard to this matter that was entered into the record. District evidence is denoted by numbered exhibits (i.e. Exhibit 1, 2, etc.) Parent evidence is denoted by lettered exhibits (i.e. Exhibit A, B, etc.). Evidence of the IHO are denoted by roman numerals (i.e. Exhibit I, II, etc.). Page numbers are listed for the convenience of the reader (i.e. Exhibit 1-2, A-2, or I-2 where “2” is the page number).