New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 536913 - NYC: 193754

FINDINGS OF FACT AND DECISION

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

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

Hearing Requested by: REDACTED^[1] and REDACTED^[2] (collectively referred to as the “Parents”)

Record Close Date: December 31, 2020

Hearing Officer: Randy Glasser, Esq.

On May 4, 2020, REDACTED, Esq. of REDACTED, filed a due process complaint (“DPC”) on behalf of the Parents and their child, the Student, under the Individuals with Disabilities Education Improvement 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 September 29, 2020. A pendency hearing was held on October 7, 2020 resulting in a Pendency Order dated October 8, 2020 (IHO Ex. “I”).

The hearing was held on November 16 and December 16, 2020. The District submitted into evidence District Exhibits “1” through “5”. The Parents submitted into evidence Parent Exhibits “A” through “N”, which included in part the Affidavits of REDACTED dated December 9, 2020 (“REDACTED Affidavit”) and REDACTED (the “Student’s Mother”) dated December 16, 2020 (“Parent Affidavit”) (see Parent Ex. “M”, and “N”, respectively). Lists of the documentary evidence submitted in this proceeding are appended to this Findings of Fact and Decision (“Decision”). While only the District made an opening statement, both parties declined the opportunity to submit written closing statements, making closing statements on the record instead (Tr. 38-39, 85-86, 123-136, 136-141). The compliance date for issuing a decision in this proceeding has been extended to January 12, 2021 (IHO Ex. “II”).

BACKGROUND AND POSITIONS OF THE PARTIES

The Student, classified as a student with a Learning Disability, is eight (8) years old (see Parent Ex. “A”, DOE Ex. “1”). At the meeting on March 5, 2019, held to develop the Student’s Individualized Education Program (“IEP”) for the 2019/2020 school year, the Committee on Special Education (“CSE”) recommended for the Student integrated co-teaching (“ICT”) classes for Math, ELA [English Language Arts], Science and Social Studies, along with the following related services: individual counseling three (3) times per week, thirty (30) minutes per session, individual occupational therapy two (2) times per week, thirty (30) minutes per session, and individual and group (with an unspecified ratio of students to provider) speech language therapy, each one (1) time per week, thirty (30) minutes per session (DOE Ex. “1”, Parent Ex. “A”, “N”). When the CSE made this recommendation at the meeting, the Parent along with representatives from the REDACTED (“REDACTED”) explained why the Student needed instead, of the recommended placement, a small supportive environment that could provide her with small group/high staff to student ratio, and direct 1:1 instruction (Parent Ex. “N” at ¶ ¶ 4, 5).

Upon receipt of the Individualized Education Program (“IEP”) from the meeting held on March 5, 2019 and the School Location Letter dated June 6, 2019, which recommended P.S. 17K161 (“P.S. 161”) for the 2019/2020 school year (the same program recommended for the Student for the 2018/2019 school year), the Parents tried to schedule a tour of the program, but the school was closed for the summer (District Ex. “5”, Parent Ex. “N” at ¶¶6, 7). REDACTED (the “Student’s Father”) therefore wrote a letter to the District, dated August 2, 2019, expressing in part, the Parents’ concerns about the IEP and the proposed placement as well as their inability to reach the proposed placement to arrange a tour. To date the District has “failed to substantively respond to the concerns” discussed in this letter (Parent Ex. “A”, “C”, “N” at ¶7).

Parents’ Counsel sent a second letter to the DOE, on the Parents’ behalf, dated August 21, 2019, reiterating the concerns expressed by the Parents in the aforementioned letter dated August 2, 2019, regarding the recommended placement and inability to arrange a tour and informing the District of the Parents’ intention to unilaterally enroll the Student at the REDACTED (“REDACTED”) for the 2019/2020 school year, to which the DOE has also failed to “substantively respond” (Parent Ex. “D”, “N” at ¶8).

On September 11, 2019, the Student’s Mother visited the DOE’s proposed program at PS 161. At that time, the Student’s Mother was told that since there were no ICT classes at the school, the Student would be placed in general education classes with a paraprofessional or a 12:1+1 class, which meant the Student would not receive the program recommended pursuant to her IEP (Parent Ex. “A”, “N” at ¶10). In a letter dated September 23, 2019. Parents’ counsel again expressed the Parents’ concerns regarding the Student’s recommended placement at PS 161, and of the Parents’ intention to continue the Student’s enrollment at REDACTED for the 2019/2020 school year, to which the District has also failed to “substantively respond” (Parent Ex. “N” at ¶11).

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, 206-207 (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/her 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)(3)(E)(ii); 34 C.F.R. §300.513(a)(2); 8 NYCRR §200.5(j)(4)(ii)).

In the instant case the DOE did not sustain its burden because it failed to have available the Student’s recommended placement at the commencement of the 2019/2020 school year. As aforementioned, when the Student’s Mother visited P.S. 161, she was informed that despite the Student’s recommended placement on her IEP the school did not have ICT classes for her to attend. Thus, instead of implementing the Student’s IEP, she would be placed in either a general educational class with a paraprofessional or a 12:1+1 class (see infra). There is no indication in the record that the DOE attempted to address this issue once being advised by the Parents and Parents’ counsel of the fact that PS 161 had and still did not have an ICT class for the Student, in the letters dated August 2, 2019, August 21, 2019 and September 23, 2019 (Parent Ex. “C”, “D”, and “E”).

It is well settled that school district may not assign a child to a school "that cannot satisfy the IEP's requirements."  F.B. v. New York City Dep’t of Educ., 132 F.3d 522, 552 (S.D.N.Y. 2015) citing M.O. v. New York City Dep’t of Educ., 793 F.3d 236 (S.D.N.Y. 2015) (quoting T.Y., 584 F.3d at 420). A number of courts have therefore held,

[w]hen a proposed placement has not been proven able to deliver the services required by the IEP, that alone constitutes the denial of a FAPE. See, e.g., B.R., 910 F.Supp.2d at 678-79 (finding denial of FAPE where DOE "failed to carry its burden of showing that K.O. would receive the 1:1 out-of-class occupational therapy set forth in the IEP"); D.C., 950 F.Supp.2d at 513 ("At the time D.C. was considering placement at P188, the record indicates that the school could not provide a seafood free environment," as required by the IEP); see generally M.O., 793 F.3d at 244.

Id. at 552 (emphasis added). Thus, in the instant case, there has been a denial of FAPE, because the proposed placement, P.S. 161, did not have, and therefore could not provide the ICT classes required by the Student’s IEP.

Moreover, the record fails to demonstrate the appropriateness of the special education program contained on the Student’s IEP for the 2019/2020 school year. In this regard, the DOE called only one witness on its direct case, Suzanne Gentile, the Teacher Assigned, who had never met the Student and did not remember if she had observed the Student (Tr. 44). Ms. Gentile testified globally regarding the appropriateness of the ICT classes recommended for the Student at the CSE meeting held on March 5, 2019, and evaluations that were usually conducted, but did not specifically testify regarding either of these matters in terms of the Student (Tr. 45–52, 55). Ms. Gentile also testified as to the probable basis for the recommended related services, the fact that the Student’s program was not predetermined, whether the District provides 1:1 instruction and development of the Student’s goals (Tr. 52-53, 55-56, 57-58). Ms. Gentile concluded by stating that she believed that the recommendations made by the CSE for the Student for the 2019/2020 school year were appropriate (Tr. 58). Accordingly, since there was no testimony or evidence presented specifically demonstrating the appropriateness of the recommended program contained in her IEP, the DOE has failed to satisfy its statutory burden of persuasion and production, 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.

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 364-365).

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 because it provided the Student with educational instruction that was specifically designed to meet her unique special education needs, supported by such services that were necessary to permit her to benefit from instruction and established that the Student did, in fact, make meaningful progress at the school (see: Parent Ex. “I”, “J”, “M”). In this regard, the REDACTED Affidavit demonstrates the appropriateness of the Student’s placement and program at REDACTED, (Parent Ex. “N” at ¶¶5, 6, 9, 10, 25), the training and qualifications of the Student’s teachers at REDACTED (Id. at ¶¶11, 12), Ms. REDACTED’s involvement with the Student and her classroom during the 2019/2020 school year (Id. at ¶¶7, 8), and the Student’s progress in reading (Id. at ¶16), math (Id. at ¶17), writing (Id. at ¶18), social skills (Id. at ¶¶19, 20) behavior (Id. at ¶21), speech language therapy (Id. at ¶22), occupational therapy (Id. at ¶23), and counseling (Id. at ¶24; see also the Student’s REDACTED Student Educational Plan and Progress Reports, which demonstrate the Student’s progress in all of her classes and related services at Parent Ex. “I”, “J”).

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 the Student’s Mother’s attendance at IEP Team meetings, including the one held on March 5, 2019, as well as contacting, and visiting the DOE’s recommended placement at P.S. 161, providing written notice to the DOE in the Parents’ letter dated August 2, 2019, and Parents’ counsel, REDACTED, Esq.’s (of the Law Firm of REDACTED P.C.), letters dated August 21, 2019 and September 23, 2019 of the Parents’ concerns regarding the CSE meeting held on March 5, 2019, and the Student’s recommended placement at P.S. 161, to which she did not receive a “substantive” reply, and providing the requisite notice to the DOE of their intention to continue the Student’s enrollment at REDACTED (Parent Ex. “A”, “C”, “D”, “E”, “J” at ¶¶2, 3, 4, 6, 7, 8, 9, 10, 11). 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, less the amount for religious instruction. In this regard, pursuant to IHO Kehoe’s decision dated December 13, 2019, after finding for the Parents, he awarded to the Parents the amount of the Student’s tuition at the private school where she was unilaterally placed for the 2018/2019 school year, after subtracting six percent (6%), which IHO Kehoe stated was “conceded by the Parent as the amount of time the Student spent on religious instruction” (Parent Ex. “B” at p. 8, fn. 1).

In terms of the DOE’s obligation to fund a Student’s secular (vs. non-secular) education, the court explained in Leiman v. Smith, 467 F.3d 487, 496-497 (4th Cir. 2017):

In this regard, absent from the IDEA is any requirement that schools provide religious or cultural instruction... In fact, federal regulations support the conclusion that states may not use IDEA funds to provide religious and cultural instruction. See, e.g., 34 C.F.R. § 76.532(a)(1) (funding regulation prohibiting a state from "us[ing] its grant or subgrant to pay for... [r]eligious worship, instruction, or proselytization"). As the Sixth Circuit stated in an IDEA case, albeit in response to an Establishment Clause argument, "[t]he IDEA certainly has a secular purpose, and its primary effect is one that does not advance religion." Peck ex rel. Peck v. Lansing Sch. Dist., 148 F.3d 619, 629 (6th Cir. 1998).

Id. 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, less the non-secular portion (see: Connors v. Mills, 34 F.Supp.2d 795 at 805-806, 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 total annual tuition plus fees for related services, for REDACTED for the 2019/2020 school year was SIXTY-ONE THOUSAND ONE HUNDRED DOLLARS ($61,100.00)^[3], of which the Parents have made no direct payment (Parent Ex. “K”, “L”). Moreover, pursuant to the REDACTED Affidavit and Class Schedule, it appears that two (2) hours or approximately 7.5% of the time spent on the Student’s instruction was religious (non-secular) (Parent Ex. “G”, “M” at ¶15). Thus, since, 7.5% of FORTY-EIGHT THOUSAND FIVE HUNDRED DOLLARS ($48,500.00) (the annual tuition) equals approximately, THREE THOUSAND SIX HUNDRED AND THIRTY-SEVEN DOLLARS ($3,637.00), the Parents are entitled to tuition reimbursement/direct payment in the amount of FIFTY-SEVEN THOUSAND FOUR HUNDRED AND SIXTY-THREE DOLLARS ($57,463.00)^[4].

ORDER

IT IS HEREBY ORDERED that the District shall pay/fund directly to REDACTED the Student’s secular/nonreligious tuition, for the 2019/2020 school year, totaling an amount not to exceed FIFTY-SEVEN THOUSAND FOUR HUNDRED AND SIXTY-THREE DOLLARS ($57,463.00), with such direct payment to REDACTED being made by the District within thirty (30) days of the date of this Decision.

Dated: December 31, 2020

Randy Glasser, Esq.

RANDY GLASSER, ESQ.

Impartial Hearing Officer

DOCUMENTS ENTERED INTO THE RECORD

IHO Exhibits

• • Pendency Order, 10/8/20, 7 pages
• • Extension Order, 11/16/20, 1 page
• • DOE Exhibits
• • 1. Individualized Education Program, 3/05/2019, 19 pages
• • 2. Attendance Page, 3/05/2019, 1 page
• • 3. Psychoeducational Evaluation, 8/28/2018, 6 pages
• • 4. Prior Written Notice (Notice of Recommendation), 6/06/2019, 3 pages
• • 5. School Location Letter 6/06/2019, 2 pages
• • Parent Exhibits A. Due Process Complaint, 5/4/2020, 4 pages B. Decision Order, 12/23/19, 10 pages C. Letter from Parents to the CSE, 8/2/2019, 2 pages D. Letter o/b/o Parents to the CSE with email confirmation, 8/21/2019, 3 pages E. Letter o/b/o Parents to the CSE with email confirmation, 9/23/2019, 3 pages F. Undated Program Description for the REDACTED (“REDACTED”), 2 pages G. Student Schedule, 2019-2020, 1 page H. Student’s Attendance Record, 6/30/2020, 1 page I. Student Progress Reports, 2/2020, 6 pages J. REDACTED Student Educational Plan, 10/2019, 13 pages K. Enrollment Contract with Addendum, 9/5/2019, 3 pages L. Tuition Affidavit, 10/26/2020, 1 page M. Affidavit of Testimony of Eve REDACTED, 12/9/2020, 7 pages N. Affidavit of Testimony of REDACTED, 12/16/2020, 4 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] The Student’s Mother’s name is spelled as both “REDACTED” and “REDACTED” in the Parent Exhibits.

[2] The Student’s Father’s name is spelled as both “REDACTED” and “REDACTED” in the Due Process Complaint and other Parent Exhibits.

[3] Which is comprised of FORTY-EIGHT THOUSAND FIVE HUNDRED DOLLARS ($48,500.00), plus TWELVE THOUSAND SIX HUNDRED DOLLARS ($12,600.00).

[4] Which is computed as follows: FORTY-FOUR THOUSAND EIGHT HUNDRED AND FORTY DOLLARS ($44,840.00) (FORTY-EIGHT THOUSAND FIVE HUNDRED DOLLARS ($48,500.00) less THREE THOUSAND SIX HUNDRED AND THIRTY-SEVEN DOLLARS ($3,637.00)) plus TWELVE THOUSAND SIX HUNDRED DOLLARS ($12,600.00) = FIFTY-SEVEN THOUSAND FOUR HUNDRED AND SIXTY-THREE DOLLARS ($57,463.00).