New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 536635 - NYC: 193510

FINDINGS OF FACT AND DECISION

Student’s Name: REDACTED (the “Student”)

Date of Birth: REDACTED

District: REDACTED

Hearing Requested By: REDACTED on behalf of REDACTED (“Parent”) and the Student.

Record Close Date: November 12, 2020

Hearing Officer: Randy Glasser, Esq.

On April 8, 2020, REDACTED, of REDACTED filed a Due Process Complaint (“DPC”) on behalf of the Parent and her child, the Student, under the Individuals with Disabilities Education Act Improvement (the “IDEA”) (20 U.S.C. §1415(f)), Section 4404(1) of the New York State Education Law, and Section 504 of the Rehabilitation Act of 1973, against the DOE for the 2019/2020 school year (Parent Ex. “A”). This Hearing Officer was appointed as the impartial hearing officer (“IHO”) on September 4, 2020. A prehearing conference was held on September 16, and status conference on October 2, 2020. The hearing was held on October 16, 2020 and October 26, 2020.

The DOE submitted into evidence Exhibits “1” through “3”. The Parent submitted into evidence Exhibits “A” through “P”, which included in part the Testimonial Affidavit of REDACTED dated September 22, 2020 (“Parent Affidavit”) and of REDACTED dated September 19, 2020 (“REDACTED Affidavit”) (see Parent Ex. “O” and “P”). A list of documentary evidence in this proceeding is appended to this Decision. The compliance date for issuing a decision in this proceeding has been extended to November 18, 2020 (IHO Ex. “I”).

BACKGROUND AND POSITIONS OF THE PARTIES

The Student is a REDACTED year-old male, classified as a student with an “Other Health Impairment”^[1] (District Ex. “3”, Parent Ex. “A”, “O”). The Student has a diagnosis of spastic dysplasia, (which is a form of cerebral palsy), affecting a variety of developmental areas including gait, (resulting in gait deprivation), speech, fine motor, sensory integration, and self-regulation (District Ex. “2”, “3”; Parent Ex. “A”, “O”). He also has a diagnosis of Attentional Deficit Hyperactivity Disorder (“ADHD”) (District Ex. “3”). The Student has low oral muscle tone “which negatively affects his ability to safely navigate environments and communicate” (Parent Ex. “P”).

The instant proceeding pertains to the 2019/2020 school year (Parent Ex. “A”). In a letter dated May 9, 2020 to the DOE, the Parent requested a CSE meeting with the DOE to request a full-time special education placement and IEP for her son, the Student (Parent Ex. “B”). At a meeting held on June 24, 2019, the DOE’s IEP Team recommended an IEP for the Student, for the Summer of 2019, (but not for the subsequent ten-month 2019/2020 school year), to address his substantial regression throughout the 2018/2019 school year (Parent Ex. “A”, “B”, “O” at ¶¶ 3, 4). On August 8, 2019, the Parent wrote another letter to the DOE requesting the IEP Team convene to recommend a public-school placement for the 2019/2020 school year (Id. at ¶4, “C”). After not receiving a reply from the DOE regarding her aforementioned letters dated May 9, 2019 and August 8, 2019, and because of the alleged absence of adequate recommendations and proposed public placement for the Student, the Parent wrote the DOE a letter on August 25, 2019, to inform them of her intention to enroll the Student at the REDACTED (“REDACTED”) for the 2019/2020 school year (Id. at ¶5, “D”). The Student began attending REDACTED on September 5, 2019, where he remained for the entire 2019/2020 school year (Id. at ¶5, “H”, “K”, “P”).

At a meeting held on September 26, 2019, the IEP Team recommended the following program and services for the Student for the 2019/2020 school year: placement in a special class of fifteen (15) students to one (1) teacher (15:1) for Math, ELA, Social Studies and Science along with counseling in a group of five (5) students to one (1) counselor (5:1) two (2) times per week, thirty (30) minutes per session, individual occupational therapy two (2) times per week, thirty (30) minutes per session, individual physical therapy two (2) times per week, thirty (30) minutes per session and speech language therapy in a group of five (5) students to one (1) therapist (5:1), two (2) times per week, thirty (30) minutes per session (District Ex. “2”). As of October 26, 2020 the Parent had not received a copy of the IEP from the meeting held on September 26, 2019, or a proposed public placement e.g. School Location Letter, for the Student for the 2019/2020 school year (Parent Ex. “O” at ¶¶10, 11, Tr. 122-123).

In a letter dated December 5, 2019 (to which the Parent maintains she did not receive a response), the Parent informed the DOE of her intention to continue the Student’s enrollment at REDACTED and to seek public funding for same, based on her concerns, lack of appropriate IEP recommendations and absence of a proposed public placement for the Student (Parent Ex. “O” at ¶ 9).

The Parent requests the DOE’s tuition reimbursement and/or funding of the Student’s placement at the REDACTED for the 2019/2020 school year, as well as a declaratory finding that the DOE violated the Student’ right to a free appropriate public education (“FAPE”) for the 2019/2020 school year (Parent Ex. “A”).

The Parent’s position is that (1) the DOE has failed to meet its burden of proof that it offered the Student an appropriate IEP and placement that met the Student’s needs for the 2019/2020 school year because the Parent did not receive a copy of the IEP developed by the IEP Team at the meeting held on September 26, 2019, or any proposed placement for the 2019/2020 school year, and the DOE failed to offer adequate documentary and testimonial evidence to prove such IEP was procedurally and substantively valid (Tr. 127-132), (2) the Parent met her burden of demonstrating that REDACTED was an appropriate placement for the Student for the 2019/2020 school year in that it addressed the Student’s academic, social-emotional, behavioral and related service needs (Tr. 132-135), and (3) the equitable considerations favor reimbursement/funding for the Student’s placement at REDACTED for the 2019/2020 school year (Tr. 135-137). The Parent therefore requests an order by this IHO that the DOE fund the cost of the Student’s tuition and related services at REDACTED for the 2019/2020 school year, which includes reimbursement to the Parent for the portion of the Student’s tuition she paid to REDACTED and direct payment of the balance owed to REDACTED (Parent Ex. “L”, “O” at ¶¶ 12, 13; Tr. 137-138).

The DOE’s position is that the DOE proved through witness testimony that the Student’s placement was appropriate, a FAPE was provided to the Student, and that the forms to confirm the Student’s placement and recommendations for the 2019/2020 school year were in fact mailed to the Parent (Tr. 138).

Both the DOE and the Parent put on a direct case. The DOE made an opening statement on the first day of the hearing; however, the Parent’s attorney reserved the right to make an opening statement until putting on the Parent’s direct case which he did, on the second day of the hearing. Both parties opted to make closing statements on the record instead of submitting written closing statements (T. 66-68, 111-117, 125-138).

FINDINGS OF FACT AND DECISION

The IDEA provides that children with disabilities are entitled to a FAPE (20 U.S.C. § 1400 (d)(1)(A)). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written IEP (Id., 20 U.S.C. §1414(d); 34 C.F.R. § 300.17). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures, and is (c) reasonably calculated to enable the student to receive educational benefits Board of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas County Sch. Dist. RE-1, No 15-827, 137 S. Ct. 988 (2017).

Decisions of impartial hearing officers must be on substantive grounds based on a determination of whether the student received a FAPE (8 NYCRR § 200.5(j)(4)(i)), except:

In matters alleging a procedural violation, an impartial hearing officer may find that a student did not receive a free appropriate public education only if the procedural inadequacies impeded the student’s right to a free appropriate public education, significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of a free appropriate public education to the parent’s child, or caused a deprivation of educational benefits. Nothing in this paragraph shall be construed to preclude an impartial hearing officer from ordering a school district to comply with procedural requirements under this Part and Part 201 of this Title 8 NYCRR § 200.5(j)(4)(ii).

Id. (Emphasis added.)

School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement (NYS Educ. Law § 4404(1)(c)).

• • The IDEA empowers a hearing officer to grant the relief he/she deems appropriate. 34 CFR §300.516(c)(3). One such remedy is reimbursement of tuition and related expenses. Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); Burlington Sch. Comm. v. Mass. Dep’t. of Educ., 471 U.S. 359, (1985). Notably, the mere fact that the state educational agency and/or LEA has not approved the private school placement does not bar the parents from reimbursement. Florence County Sch. Dist. Four v. Carter, supra.

A board of education may be required to pay for educational services obtained for a child by the child's parent, (1) if the services offered by the board of education were inadequate or inappropriate, (2) the services selected by the parent were appropriate, and (3) equitable considerations support the parent's claim. (Burlington Sch. Comm v. Mass. Dep’t. of Educ., supra; Florence County Sch. Dist. Four et al. v. Carter, supra); see also Frank G. and Dianne G. v. Board of Educ. of Hyde Park, 459 F.3d 356 (2d Cir. 2006), cert denied, Board of Educ. of Hyde Park Cent. Sch. Dist. v. Frank G., 2007 WL 2982269 (2007). Accordingly, the above-stated three (3) prong analysis (the “Burlington/ Carter Criteria”) is applied to determine whether the board of education is required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents. Id.

The inquiry made pursuant to the first prong, may go beyond the appropriateness of the student’s IEP and/or placement and encompass other FAPE claims (see 20 USC §1412(a)(10)(C)(ii); 34 C.F.R. 300.148(a) and (c); Forest Grove v. T.A., 557 U.S. 230 (2009); P.C. Oceanside Union Free Sch. Dist., 818 F. Supp. 2d 516 (E.D.N.Y. 2011); Mr. N.C. v. Bedford Cent. Sch. Dist., 300 F. App’x 11 (2d Cir. 2009). To determine whether the school district made FAPE available to the student in a timely matter, Rowley’s two-part test, as modified by Endrew F. v. Douglas County Sch. Dist., RE-1, 137 S. Ct. 988 (2017) for appropriateness should be applied. Specifically, the hearing officer must determine whether the school district complied with the procedural requirements of the IDEA and whether the IEP is reasonably calculated to enable the child to make appropriate progress in light of his circumstances. Id. “An appropriate educational program therefore 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 for the use of appropriate special education services.” (See Application of the Dept. of Educ., Appeal No. 07-018 (2007)). Thus, the annual goals and short-term objectives should be consistent with, and relate to, the identified needs and abilities of the student. See Application of a Student with a Disability, Appeal No. 14-078 (2015) (citing 20 U.S.C. § 1414(d)(1)(A)(i)(II); 34 CFR § 300.320(a)(2)(i); 8 NYCRR § 200.4(d)(2)(iii)).

While the Second Circuit has emphasized that school districts must comply with a checklist of procedures for developing a student’s IEP, the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA. See A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 (2d Cir. 2009). Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies: (a) impeded the student’s right to a FAPE; (b) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student; or (c) caused a deprivation of educational benefits to the student (20 U.S.C. §1415(f)(d)€(ii); 34 C.F.R. §300.513(a)(2); 8 NYCRR §200.5(j)(4)(ii)).

As more fully explained below, the DOE failed to provide the Student with a FAPE because of its failure to develop and implement the Student’s IEP at the beginning of the 2019/2020 school year. In this regard, the IEP Team failed to meet to develop the Student’s IEP for the 2019/2020 school year until September 26, 2019, which was after the school year commenced, and there was no documentary evidence submitted by the DOE e.g., school location letter, demonstrating that the DOE informed the Parent of the Student’s public-school placement for the 2019/2020 school year at any time (Parent Ex. “O” at ¶¶10, 11). In fact, the only evidence provided by the DOE was the testimony by REDACTED, (a Teacher Assigned A at CSE 7, which encompasses Districts 20 and 21), regarding her conclusion that the Placement Officer, mailed the Parent the IEP dated September 26, 2019 and school placement letter (Tr. 70, 72, 78, 82, 83).

The IDEA requires, “[a]t the beginning of each school year, each public agency must have in effect, for each child with a disability within its jurisdiction, an IEP.” 20 U.S.C. § 1414(d)(2)(A); 34 C.F.R. § 300.323(a); 8 N.Y.C.R.R. § 200.4(e)(1)(ii). If the school district fails to have an IEP that it can implement at the start of the school year, this failure may lead to a denial of FAPE if the failure impeded the child’s right to FAPE, deprived the child of educational benefit or significantly impeded the Parent’s ability from participating in the IEP process. 20 U.S.C. § 1415 (f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2), See Leggett v. D.C., 793 F.3d 59, 67 (D.C. Cir. 2015). See also M.O. v. N.Y.C. Dep’t. of Educ., 793 F.3d 236, 244 (2d Cir. 2015) (holding “it is not speculative to find that an IEP cannot be implemented at a proposed school that lacks the services required by the IEP”).

In the instant matter the DOE’s failure to develop and implement an IEP for the Student at the start of the 2019/2020 school year, led to a denial of FAPE, and deprived the Student of educational benefit because, if the Parent had not unilaterally placed the Student at the REDACTED, the Student would not have received a special education program and services until after September 26, 2019, pursuant to his IEP or otherwise.

Moreover, the record fails to demonstrate the appropriateness of the special education program contained on the Student’s IEP for the 2019/2020, e.g. that the IEP is reasonably calculated to enable him to make appropriate progress in light of his circumstances. Accordingly, since the DOE has failed to satisfy the first prong of the Burlington/Carter criteria, the Parent has the burden of proving that the unilateral placement was appropriate or proper. Burlington Sch. Comm., 471 U.S. at 369 and 370; see also Florence County Sch. Dist. Four et al. v. Carter, 510 U.S. at 15. In order to meet this burden, the Parent must establish, by a preponderance of the evidence, that the unilateral placement provides “educational instruction specifically designed to meet the unique needs of the student” (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d. Cir. 2007)). In this regard, the court in Gagliardo explained:

No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents 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 educational 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.

Id. at 112 (quoting, Frank G., 459 F.3d at 364-65).

However, the private school placement “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements” (Frank G. v. Board of Educ., at 364). Moreover, the private placement need not provide certified special education teachers or an IEP. Parental placements are not subject to the same mainstreaming requirements as a school district placement. The private school placement must be reasonably calculated to enable the child to receive educational benefits, and must be likely to produce progress, not regression. Id.

In the instant case, the testimony and documentary evidence overwhelmingly support the Parent’s claim that the Student’s placement at REDACTED was appropriate and provided the Student with educational instruction that was specifically designed to meet his unique special education needs, supported by such services that were necessary to permit him to benefit from instruction and established that the Student did, in fact, make meaningful progress at the school (see: Parent Ex. “F”, “I”, “J”, “O” and “P”). In this regard, the Affidavit of Testimony by REDACTED reports on the appropriateness of the Student’s placement at REDACTED (Parent Ex. “O” at ¶8), the qualifications of the Student’s teachers at REDACTED, Ms. REDACTED’s involvement with the Student’s classroom during the 2019/2020 school year, as well as the Student’s progress in reading (Id. at ¶¶ 14-15), math skills (Id. at ¶¶ 16-18), writing and graphomotor skills (Id. at ¶¶19-21), social skills (Id. at ¶¶22 – 24), behavior modification addressed through the behavior plan (Id. at ¶25), and related services of counseling, physical therapy, occupational therapy, and speech language (Id. at ¶¶ 25 – 30, see also: “I” at pgs. “I – 4” – “I – 6”).

The determination of whether, or not equitable factors support a parent’s claim for tuition reimbursement hinges, in large part, on whether, the parent cooperated with the CSE (IEP Team). In the instant matter, the Parent fully cooperated with the CSE as seen by her attendance at the IEP Team meetings held on June 24, 2019, and September 26, 2019, and attempts to schedule and meet with the DOE at such meetings to develop an appropriate IEP for the Student for the 2019/2020 school year, (as evidenced by her letters dated May 9, 2019, and August 8, 2019) (Parent Ex. “A”, “B”, “C”, “O” at ¶¶ 3, 4). Moreover, the Parent provided the requisite ten-day notice to the DOE of her intention to enroll the Student at REDACTED (34 C.F.R. §300.148(d)(1)(ii)) (Parent Ex. “D”, “O” at ¶ 5). Finally, the DOE failed to provide any evidence and/or raise any equitable factors, that would preclude or limit tuition reimbursement for the Parent’s unilateral placement of the Student at REDACTED for the 2019/2020 school year.

Based on the foregoing, I find that equitable factors support the Parent’s claim for tuition reimbursement for the 2019/2020 school year. The Parents have therefore met the third prong of the Burlington/Carter criteria for tuition reimbursement. Having met all three of the Burlington/Carter criteria, the Parents are entitled to reimbursement for the cost of the Student’s 2019/2020 placement at REDACTED.

Accordingly, the tuition reimbursement and/or funding for the Student’s placement at REDACTED for the 2019/2020 school year, is an appropriate remedy in this case and the Parent’s request for tuition reimbursement is granted (see: Connors v. Mills, 34 F.Supp.2d 795 at 805-d806, 132 Ed. Law Rep. 767 (N.D.N.Y. 1998), Mr. & Mrs. A. ex rel. D.A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403 (S.D.N.Y. 2011)). In this regard, the record in this case establishes that the cost for the Student to attend REDACTED for the 2019/2020 school year is SEVENTY SIX THOUSAND ONE HUNDRED DOLLARS ($76,100.00) which is comprised of FIFTY ONE THOUSAND DOLLARS ($51,000.00) for tuition, TWELVE THOUSAND SIX HUNDRED DOLLARS ($12,600.00) for related services, and TWELVE THOUSAND FIVE HUNDRED DOLLARS ($12,500.00) for a 1:1 half-day paraprofessional (Parent Ex. “K”, “L”, “O” at ¶12; Tr. 120-121).

ORDER

IT IS HEREBY ORDERED that the REDACTED shall reimburse the Parent for the total amount of tuition, related services, and 1:1 half-day paraprofessional (“Student’s Tuition”), she paid to the REDACTED for the 2019/2020 school year and pay/fund directly to the REDACTED the remaining portion of the Student’s Tuition, for the 2019/2020 school year with both the REDACTED’s reimbursement and direct payment to the REDACTED for the Student’s Tuition be in a total amount not to exceed SEVENTY SIX THOUSAND ONE HUNDRED DOLLARS ($76,100.00), with both such reimbursement to the Parent and payment to the REDACTED being made by the REDACTED within thirty (30) days of the date of this decision.

Dated: November 12, 2020

Randy Glasser

RANDY GLASSER

Impartial Hearing Officer

DOCUMENTS ENTERED INTO THE RECORD

DOE EXHIBITS

1. Parent letter, 8/8/19, 1 pg.

2. IEP, 9/26/19, 18 pgs.

3. Psychoeducational evaluation, 9/12/19, 4 pgs.

PARENT EXHIBITS

A. DPC, 4/9/20, 4 pgs.

B. Letter, 5/9/18, 2 pgs.

C. Letter, 8/8/19, 2 pgs.

D. Letter, 8/25/19, 1 pg.

E. Letter, 12/5/19, 4 pgs.

F. Program description, unidentified date, 2 pgs.

G. 2019/2020 student schedule, unidentified date, 1 pg.

H. Attendance record, 6/30/20, 1 pg.

I. Progress report, 2/2020, 6 pgs.

J. Student educational plan, 10/2019, 15 pgs.

K. Enrollment contract with addendum, 9/5/19, 4 pgs.

L. Tuition affidavit, 10/8/20, 1 pg.

M. U.S. federal individual tax return 2018, unidentified date, 2 pgs.

N. Physical Therapy Progress Report, February 2020, 1 pg.

O. Testimonial Affidavit of REDACTED, 10/22/20, 3 pgs.

P. Testimonial Affidavit of REDACTED, 10/19/20, 7 pgs.

IHO EXHIBITS

I. Order of Extension dated 10/16/2020

• • 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] According to the Individualized Education Program (“IEP") dated September 26, 2019 the Student is classified as a student with “Multiple Disabilities” (District Ex. “2”). However, as aforementioned, pursuant to the DPC and the Psychoeducational Evaluation dated September 12, 2019 the Student is classified as a student with an “Other Health Impairment” (District Ex. “3”; Parent Ex. “A”).