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FINDINGS OF FACT AND DECISION
NAMES AND TITLES OF PERSONS WHO APPEARED
OCTOBER 6, 2023
For the Student:
REDACTED, ESQ., Attorney
For the Department of Education:
REDACTED, District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
OCTOBER 26, 2023
For the Student:
REDACTED, ESQ., Attorney REDACTED
For the Parents:
REDACTED Director of Admissions, The [REDACTED] School
For the Department of Education:
REDACTED, District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
FEBRUARY 1, 2022
For the Student:
REDACTED, ESQ., Attorney
For the Department of Education:
REDACTED, District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
MARCH 1, 2022
For the Student:
REDACTED, ESQ., Attorney
For the Department of Education:
REDACTED, District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
AUGUST 12, 2022
For the Student:
REDACTED, ESQ., Attorney
For the Department of Education:
REDACTED, District Representative
INTRODUCTION AND PROCEDURAL HISTORY
This matter comes before the undersigned Impartial Hearing Officer ("IHO") on Parent's Due Process Complaint ("DPC") filed on or about September 8, 2020. (P exhibit A)2.
The DPC dated September 8, 2020, included multiple claims including that the DOE failed to offer REDACTED a legally appropriate IEP and placement for the 2020-2021 school year. The Parent further argues that the unilateral placement at the REDACTED was appropriate, and that the Student is entitled to transportation and related a bank of related services and supports. The District did not present any documentary or testimonial evidence and rested at the beginning of the hearing
On October 26, 2021, the Parents were represented by REDACTED, ESQ. from the Law Office of REDACTED. DOE was represented by REDACTED. Parent's exhibits A-M were offered into evidence and were admitted over the District representatives objections to various exhibits. DOE did not offer evidence, however, did reserve the right to challenge Prong II issues and raise equity issues should they arise.
The record was closed on March 16, 2023, after extensions were granted in accordance with regulation upon receipt of the remaining evidence.
JURISDICTION
The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, "IDEA"), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.
BACKGROUND
According to the DPC, REDACTED is now a [REDACTED] 6-year-old child that has been classified by the DOE with Speech or Language Impairment. Further, he exhibits significant learning and behavioral deficits consistent with his diagnosis of speech or language impairment. He has diagnoses of Attention Deficit Hyperactivity Disorder-Combined Type (ADHD), auditory processing disorder, dyslexia and dyscalculia. (P exhibit A-2, and J).
REDACTED last most recent IEP at the time of the hearing, conducted 2019 recommended a 10-year DOE community school with an Integrated Co-Teaching Class (ICT) eight times per week for Math and eight times per week for ELA. SETSS was recommended five times per week and Speech & Language Therapy (SLT) in a group of three, one time per week for forty minutes and an individual session of SLT once per week for forty minutes. (Ibid.)
The Parent objected to the IEP team's composition, its knowledgeability of the DOE's continuum, argued that the decisions where not based on the student's individual needs, and did not make appropriate recommendations. The Parent further argued that they were not provided with legally sufficient meeting notices, and that [REDACTED] was not properly evaluated by the DOE. Furthermore, the recommended placement and services were inadequate and inappropriate.
As a result, the Parent sought unilateral placement at the REDACTED, as Parent believes that that placement is appropriate for the student.
FINDINGS OF FACT
The Student is [REDACTED] years old and is diagnosed with ADHD, dyslexia, dyscalculia and intensive speech and language needs. He received special education support services and therapies since preschool. As a result of his condition, he has special needs that require a structured and intensive program to develop his reading, writing and math skills, and to support his executive functioning skills development. He requires a small class with trained teachers facilitating literacy and development in children with learning and reading disabilities. (P exhibit J).
His mother has advocated for his needs over the years, however, the District did not agree with the kind of supports that the she claimed he needed. Such claims are based on various evaluations, clinical recommendations, and other factors. (P exhibit A)
The DOE did not evaluate REDACTED for the 2020/2021 school year and the parent contends that the child was not provided an appropriate placement. The Parent notified the DOE on August 24, 2020, that because her child was not offered a FAPE for the 2020-2021 school year, she intended to seek funding for her child to attend REDACTED. (P exhibit D). The DOE provided no response. (transcript p 61).
At the [REDACTED] School, the Student is receiving structured programing, supervision by experienced teachers, reading specialists, and therapists under a multidisciplinary approach as laid out by the admissions director at the [REDACTED] school. (P exhibits H&I).
The mother states that the student made much progress with the small and intensive instruction at the REDACTED. She further states that the Student is able to engage in more effective communication and writing skills. (P exhibit M). Parent's exhibit F lists the individual subject areas that the student received instruction I and discusses his progress and the various supports he is receiving.
CONCLUSIONS OF LAW
The decision in this case rests on a determination of the three-pronged test set forth by the United States Supreme Court in the Burlington case, which provided that a board of education may be required to pay for educational services obtained for a child by the child's parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim. School Committee of the Town of Burlington v. Dept. of Educ., Massachusetts, 471 U.S. 359 (1985); Florence County Sch. Dist. Four v. Carter, 510 US 7 (1993).
ISSUE 1 - Appropriateness of School District Program
An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance. See 34 CFR §300.320(a)(1); 8 NYCRR §200.4(d)(2)(i); see also Tarlowe v. New York City Bd. Of Educ., 2008 WL 2736027 (SDNY July 3, 2008), noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the academic, developmental, and functional needs of the student. The IEP must accurately reflect the results of evaluations to identify the student's needs, establish annual goals related to those needs, and provides for the use of appropriate special education services. 34 CFR §300.320(a)(2); 34 CFR §300.320(a)(4); 8 NYCRR §200.4(d)(2)(iii); 8 NYCRR §200.4(d)(2)(v); see Application of the Board of Education, Appeal No. 14-104; Application of the New York City Department of Education, Appeal No. 13-121.
In this case, the district representative did not state that the DOE had provided the child with a FAPE for the 2022-2023, neither did he provide any documentary evidence or witness testimony. The District also did not note any issues concerning equity in this matter.
For the reasons noted, I find the district failed to provide a FAPE for the student.
ISSUE 2 – Appropriateness of Parent Placement
Analysis turns to the second prong of Burlington, under which the parents bear the burden of proving the appropriateness of the services obtained for the student. M.S. v. Board of Education of the City of Yonkers, 231 F.3d 96, 104 (2d Cir. 2000); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 94-29; Application of a Child with a Disability, Appeal No. 95-57. In order to meet that burden, the parents must show that the Kids First offered an educational program designed to meet Student's special education needs. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985). A unilateral placement is only appropriate if it provides education instruction specifically designed to meet the unique needs of a handicapped child. Gagliardo v. Arlington Central School District, 489 F.3d 105 (2d Cir. 2007).
In this regard, I find that the parents have sustained their burden of demonstrating the appropriateness of the program at REDACTED. It was established through testimony and other evidence that the school provides the types of services and instruction that the Student is in need of and it is found that he made significant progress at this placement by the Parent.
For all the above, I find that the Parent has demonstrated the appropriateness of the program at REDACTED for the Student.
ISSUE 3 – Equities
The third prong of the Burlington decision requires a balancing of the equities in determining whether reimbursement should be awarded. The Individuals with Disabilities Education Act (IDEA) provides that an award of tuition reimbursement may be reduced or denied if notwithstanding their being advised that they should do so, parents neither inform the CSE of their disagreement with its proposed placement and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the school district with written notice of such information ten business days before such removal. 20 U.S.C. §1412(a)(10)(C)(iii). In this case, the Parent did inform the Factors relevant to equitable considerations include whether the withdrawal of the student from public school was justified. The statutory provision serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a FAPE can be provided in the public schools. Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 (1st Cir. 2004); see also Frank G., 459 F.3d 356 (2nd Cir. 2006).
In terms of equities, the offered no evidence. Under the circumstances, analysis of equities would not prevent an award for the student's tuition at REDACTED. REIMBURSEMENT.
A hearing officer is empowered to grant relief he, she or the court determines to be appropriate. 34 C.F.R. §300.516(c)(3). Once such remedy is reimbursement of tuition and related expenses. Florence Cunty Sch. Dist. Four v. Carter, 510 U.S. 7, IDELR 532 (1993); Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S.359, 103 LRP 37667(1985). A local education agency (LEA") may be required to reimburse parents for their tuition payment to a private school for the services obtained for the student by his or her parents if the services offered by the LEA were inadequate or inappropriate, the services selected by the parents were appropriate under the Act, and equitable considerations support the parents' claim for reimbursement. Id. In Burlington, the Court found that Congress intended retroactive reimbursement to parents by a Lea as an available remedy in a proper case. Burlington, 471 U.S.at 370-71. "Reimbursement merely requires [an LEA] to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper [IEP] Id. The mere fact that the private school placement does not bar the parents from reimbursement. Florence County Schl. Dist. Four v. Carter, 510 US. 7 (1993).
The initial inquiry is whether the student's IEP and/or placement is/are "proper or "appropriate." School Comm. Of Burlington, 471 U.S. at 369 and 374. However, this initial inquiry may go beyond the appropriateness of the IEP and/or placement, See, e.g., Forest Grove v. T.A., 57 U.S. 230 (2009) (child find); P.C. v. Oceanside Union Free Sch. Dist., 818 F. Supp. 2d 516 (E.E.N.Y. 2011) (eligibility) Mr. N.C. v. Bedford Cent. School. Dist., 300 F. App's 11(2d Cir. 2008) inappropriate evaluation).
In this case, it was established that the placement was no longer able to meet the student's needs as demonstrated by the neuropsychological report and the Parent's testimony.
Should the hearing officer determine that the school district did not offer a FAPE to the student, the next inquiry is whether the parent's unilateral placement is appropriate" or "proper". School Comm. Of Burlington, 42 U.S. at 369 and 370; see also Carter 510 U.S. at 15.
I find that the Parent demonstrated through documentary and testimonial evidence that the unilateral placement was appropriate for the student for the 2020-2021 school year.
The final consideration is the balancing of the equites. In this step, the hearing officer must examine the action of the parents and school district, including:
1. Whether the parents failed to provide the school district with timely notice, either at the most recent IEP team meeting oar at least 10 business days prior to removal of the student from the public school of their rejection of the proposed public placement, including their concerns and intent to enroll the student in a private school at public expense. 20 U.S.C. § 1412(a)(10)(C)(iii)(I); 34 C.F.R. § 300.148(d)(1).
2. Whether prior to the student's removal, the school district informed the parents of its intent to evaluate the student, but the parent did not make the student available for the evaluation. 20 U.S.C. §1412(a)(10)(C)(iii)(II), 34 C.F.R. § 300.148(d)(2).
3. Whether the parents' action was unreasonable. 20 U.S.C. §1412(a)(10)(C)(iii)(III), 34 C.F.R. § 300.148(d)(3).
4. Whether the cost of the private placement is unreasonable. Florence County Sch. Dist. Four v. Carter, 510 U.S. at 16.
5. Whether there was a lack of parental cooperation with the school district.
C.G. v. Five Town Community Sch. Dist., 513 F.3d 279 (1st Cir. 2008)
In this case, the Parent gave timely notice, and the District did not attempt to evaluate the Student. I find the Parent's action and the cost to be reasonable. Lastly, the District failed to demonstrate lack of cooperation on the Parent's part.
ORDER
Based upon the above Findings of Fact and Conclusions of Law,
1. I find that the District failed to provide the Student FAPE during the 2020-2021 school year. I further find that the Parent's unilateral placement at the REDACTED l was appropriate.
2. The DOE is to reimburse the Parent and/or directly fund the cost of the Student's tuition at the REDACTED for a 10-month school year for the 2020-2021 school year;
3. The DOE is to provide Special Education Transportation on a roundtrip basis;
4. The DOE is to reimburse the Parent for any out of pocket transportation costs incurred for the 2020-2021 school year;
5. Speech and Language Therapy, individual one time per week for 45 minutes;
6. Speech and Language Therapy, group one time per week for 45 minutes.
7. Counseling individual one time per month for 45 minutes;
8. The DOE is to provide assistive Technology Hardware and Software Supports.
SO ORDERED.
DATED: April 18, 2023
Annette Hicks Gill
ANNETTE HICKS GILL
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.
APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD
PARENT EXHIBITS
A. Impartial Hearing 09/30/2020 19 pages
B. Request FOFD in Case 12/18/2019 8 pages
C. # REDACTED 10/27/2020 2 pages
D. Pendency Agreement 08/24/2020 15 pages
E. Ten Day Notice 08/21/2020 1 page
F. REDACTED Student Tuition Contract 06/15/2021 14 pages
G. REDACTED Progress Report 0/12/2021 1 page
H. REDACTED Attendance 2020-2021 Undated 1 page
I. REDACTED Program Description Undated 2 pages
J. REDACTED Hybrid Learning Plan NYC [REDACTED] Services School 05/20/2016 34 pages
K. Neuropsychological Evaluation 08/01/2016 10 pages
L. DOE Assistive Technology Evaluation REDACTED School Director of Admissions, 10/25/2021 5 pages
M. REDACTED, Affidavit Parent Affidavit-REDACTED Undated 5 pages
DOE'S EXHIBITS
None
IHO'S EXHIBITS
None
2 Exhibits shall be referred to as follows: "P" for Parents' Exhibit; "D" for District's or Department's Exhibits; and "IHO" for Impartial Hearing Officer's Exhibits. Exhibits will be followed by the exhibit number and page numbers as needed and appropriate.