New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 536804 - NYC: 193652

FINDINGS OF FACT AND DECISION

Student’s Name: REDACTED (“Student”)

District: New York City Department of Education (“DOE” or the “District”)

Hearing Requested by: REDACTED (collectively referred to as the “Parents”)

Record Close Date: December 15. 2020

Hearing Officer: Randy Glasser, Esq.

On March 25, 2020, REDACTED of REDACTED, filed a due process complaint (“DPC”) on behalf of the Parents and their child, the Student, under the Individuals with Disabilities Education Act (the “IDEA”) (20 U.S.C. § 1415(f)) and Section 4404(1) of the New York State Education Law against the DOE (Parent Ex. “A”). This Hearing Officer was appointed as the Impartial Hearing Officer (“IHO”) on October 29, 2020. A prehearing conference was held on November 6, 2020 and a Status Conference was held on November 18, 2020. The hearing was held on December 9, 2020.

The Parents submitted into evidence Parent Exhibits “A” through “N”, which included in part the Affidavits of two (2) witnesses, the Parent dated December 1, 2020 (“Parent Affidavit”) and REDACTED dated December 3, 2020 (“REDACTED Affidavit). (see Parent Ex. “D”, and “L”, respectively). The District did not cross examine any of these witnesses, put on a direct case or rebuttal witnesses. Lists of the documentary evidence submitted in this proceeding are appended to this Order. Parents’ counsel gave both an opening and brief closing statement, but the District declined (Tr. 39-40, 66-67, 69). Both parties declined the opportunity to submit written closing statements (Tr. 39-40). The compliance date for issuing a decision in this proceeding has been extended to January 12, 2021 (IHO Ex. “I”).

BACKGROUND AND POSITIONS OF THE PARTIES

The Student, classified as a student with an, Other Health Impairment, is fourteen (14) years old and been diagnosed with Autism Spectrum Disorder (see Parent Ex. “A”, and “N”). According to the Parent at the meeting held on April 15, 2019 to develop the Student’s Individualized Education Program (“IEP”) for the 2019/2020 school year, the CSE recommended a 12:1:1 special class in a community school (Parent Ex. “D” at 7, 8). At this meeting, REDACTED (the “Parent”) expressed her concerns regarding this recommended program; e.g., she explained why the recommended 12:1:1 class was too large and would not provide the level of support the Student needed, to which the CSE Team did not have a substantive response (Id. at ¶¶8, 9). Accordingly, it was clear that the CSE was going to recommend this program, the 12:1:1 special class in a community school, no matter what information the Parent shared (Id. at ¶9). After the meeting, and upon receiving the District’s notification that the Student’s 12:1:1 program was at REDACTED (“REDACTED”), the Parent immediately contacted the school to learn about the program and then visited the program as well (Id. at ¶10). However, this visit confirmed to the Parent that it did not meet the Student’s needs (Id at ¶¶10-13). In a letter dated August 16, 2019 the Parent notified the District of her concerns regarding the recommended placement and her intention to unilaterally enroll the Student in the Sinai program at REDACTED (“REDACTED”) for the 2019/2020 school year and that unless the District provided the Student with an appropriate program the Parents would be seeking funding of the program at REDACTED from the District (Parent Ex. “B”). The Parent sent another letter dated October 16, 2019, in which she reiterated her concerns about the recommended 12:1:1 program and that she would be seeking funding from the District for the Student’s program at REDACTED (Parent Ex. “C”). The Parent contends that she would have considered a program offered by the District for the 2019/2020 school year if it had been appropriate for the Student (Parent Ex. “B” at ¶¶16, 17) and that overall, she feels REDACTED is appropriate to meet the Student’s needs (Id. at ¶21).

FINDINGS OF FACT AND DECISION

The IDEA provides that children with disabilities are entitled to a free appropriate public education (“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, 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, supra, 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)).

In the instant case the DOE failed to call any witnesses, submit any documents into evidence and/or present a case-in-chief (see infra). Further, the DOE declined to cross examine any of the Parents’ witnesses or present rebuttal testimony (see infra). As aforementioned, the DOE has the statutory burden of persuasion and production in these cases, to show that the services offered by the DOE pursuant to the Student’s IEP were adequate or appropriate in order to satisfy Prong I of the Burlington/Carter Criteria.

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 Parents’ 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. “D”, “E”, “L”). In this regard, the REDACTED Affidavit demonstrates the appropriateness of the Student’s placement and program at REDACTED, including when REDACTED transitioned to distance/remote learning on March 16, 2020 due to the COVID Pandemic (Parent Ex. “L” at ¶¶4, 6, 16 -19, 22 -23, 48-52, 56, 58; see also Parent Ex. “H”, “J”, and “K”), the training and qualifications of the Student’s teachers at REDACTED, Ms. REDACTED’s involvement with the Student’s classroom during the 2019/2020 school year, and the Student’s progress in reading (Id. at ¶26), writing (Id. at ¶¶ 31-32), math (Id. at ¶¶33-37, see also: Tr. 56, 58, 59), science and social skills (Id. at ¶38), counseling (Id. at ¶40), occupational therapy (Id. at ¶41), speech therapy (Id. at 42), during sensorimotor group sessions (Id. at ¶43), music therapy (Id. at ¶44), socially (Id. at ¶46; see also the Comprehensive Student Plan which demonstrates the Student’s progress in all of the aforementioned subjects and related services at Parent Ex. “E”^[1]). For instance, the June Progress Update for Counseling states in part:

REDACTED has grown more mature in his ability to experience higher level and more meaningful conversation skills. This translates into his ability to cultivate more meaningful friendships and allow for growing responsibilities. REDACTED continues to lack clarity about his role as a student. For instance, REDACTED has tried to create school and neighborhood stores to sell items at a profit. He will attempt to keep these endeavors going after he has been informed that they are against school policy and parent guidelines. He will persist in going forward in spite of reprimand, awareness of legal ramifications of the situation, and the ethical conflicts of selling items that are sold by school officials. After numerous discussions, REDACTED will eventually process his own understanding of the violation and then will put an end to the project. Since his attitude has grown more positive and accepting of his transition to continue in high school for his academic and social needs, he is more apt to practice the necessary problem solving skills to practice behavior in the aforementioned areas. REDACTED has become more positive, more invested in his experiences and agreement of others’ hopefulness for him, and he is more hopeful about his future. His flexibility to adjust his social behavior and attempts to engage in more appropriate reciprocal conversation provide concrete examples of his growing positive attitude towards school, his future, and cultivating meaningful relationships. Specifically, his positive outlook is manifested in a more groomed appearance and his talks of next year’s high school classes and trips.

REDACTED has evidenced maturity and growth in many social emotional developmental areas. Many of these gains are evidenced with an increase in flexibility and ownership when his tales are disputed and when he is corrected about his inappropriate actions.

Id.

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 Parents fully cooperated with the CSE as seen by her attendance at the IEP Team meeting held on April 15, 2019, contacting and visiting the DOE’s recommended 12:1:1 program for the Student at REDACTED (“REDACTED”), and providing written notice to the DOE in August and October 2019 of her concerns regarding REDACTED, to which she did not receive a reply, and providing the requisite ten-day notice to the DOE of her intention to enroll the Student at REDACTED (Parent Ex. “A”, “B”, “C”, “D” at ¶¶ 6-10, 14). Finally, the DOE failed to provide any evidence and/or raise any equitable factors, that would preclude or limit tuition reimbursement for the Parents’ unilateral placement of the Student at REDACTED for the 2019/2020 school year.

Based on the foregoing, this IHO finds that equitable factors support the Parents’ claim for tuition reimbursement for the 2019/2020 school year. The Parents have therefore satisfied 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 tuition at REDACTED for the 2019/2020 school year.

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 Parents’ 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 Student’s tuition for REDACTED for the 2019/2020 school year was SIXTY- SEVEN THOUSAND SIX HUNDRED AND FIFTY-SEVEN DOLLARS AND FIFTY CENTS ($67,657.50) of which the Parents made direct payment to REDACTED of SEVENTEEN THOUSAND TWO HUNDRED AND FIFTY DOLLARS AND EIGHT CENTS ($17,250.08^[2]) (Parent Ex. “D” at ¶¶18, 19, “G”, “M”; Tr. 66- 69).

ORDER

IT IS HEREBY ORDERED that the District shall reimburse the Parents for the total amount of tuition paid to REDACTED for the 2019/2020 school year and pay/fund directly to REDACTED the remaining portion of the Student’s Tuition, for the 2019/2020 school year with both the District’s reimbursement and direct payment to REDACTED for the Student’s Tuition total an amount not to exceed SIXTY- SEVEN THOUSAND SIX HUNDRED AND FIFTY-SEVEN DOLLARS AND FIFTY CENTS ($67,657.50), with both such reimbursement to the Parents and payment to REDACTED being made by the District within thirty (30) days of the date of this decision.

Dated: December 15, 2020

Randy Glasser, Esq.

RANDY GLASSER, ESQ.

Impartial Hearing Officer

DOCUMENTS ENTERED INTO THE RECORD

IHO Exhibits

• • Extension Order, 11/18/20, 1 page
• • DOE Exhibits
• • NONE
• • Parent Exhibits
• • Due Process Complaint, 3/25/20, 3 pages
• • Parent Letter with Receipt, 8/16/19, 3 pages
• • Parent Letter with Receipt, 10/16/19, 2 pages
• • Parent Affidavit, 12/1/20, 2 pages
• • Comprehensive Student Plan, 2019/2020, 31 pages
• • Tuition Contract, 2019/2020, 1 page
• • Payment Affidavit, 9/16/20, 1 page
• • Daily Class Schedule, 2019/2020, 2 pages
• • Parent Tax Return, 2018, 3 pages
• • Program Description, undated, 1 page
• • Remote Learning Plan, Spring 2020, 3 pages
• • School Affidavit, 12/3/20, 9 pages
• • Parent Proof of Payment, 2019/20, 13 pages
• • IEP, 4/15/2019, 24 pages

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] Ms. REDACTED. explained the purpose and components of the Comprehensive Service Plan at Tr. 51 - 54.

[2] At the hearing, the Parent testified that she was seeking reimbursement/direct payment for the total amount of $97,000.00, representing the Student’s total tuition at REDACTED for the 2019/2020 school year (Tr. 63-64). However, Parents’ counsel subsequently explained that the Parents were only seeking reimbursement/direct payment for the secular portion of the Student’s tuition which totals the $67,657.50 set forth herein (Tr. 66-67).