New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 544625 - NYC: 201214

FINDINGS OF FACT AND DECISION

Case Number: 201214

Student’s Name: REDACTED

Date of Birth: REDACTED

District: REDACTED

Hearing Requested By: Parent

Date of Hearing: January 12, 2022

Actual Record Closed Date: January 26, 2022

Hearing Officer: Judith Schneider, Esq.

On January 12, 2022, I conducted an Impartial Hearing (remotely) for the New York City Department of Education (“DOE” or “the district”) Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York, pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C. §1415, and Article 89 of the Education Law of the State of New York, regarding the special education program of REDACTED (“the student”).

Procedural History

The proceeding was initiated at the request of the parents (hereinafter “the parent”) by correspondence dated September 16, 2020` (Ex. A) I was appointed Impartial Hearing Officer on February 10, 2021. A prehearing conference was conducted on February 25, 2021 at which I was informed that the parties were discussing settlement.

Status conferences were held on April 5, 2021, May 5, 2021, June 7, 2021, July 8, 2021, August 9, 2021, September 10, 2021, October 12, 2021, November 15, 2021 and December 22, 2021. I was informed of numerous changes in DOE attorneys assigned to this matter and repeated parental resubmissions of documents. The district failed to appear at numerous status conferences. An evidentiary hearing was requested by the parent on November 15, 2021 and was scheduled for January 12, 2022. The evidentiary hearing was conducted on January 12, 2022. The district did not appear and was defaulted.

Parties moved to extend the compliance date on various occasions in light of settlement discussions, anticipated testimony, the scheduling of witnesses and submission of evidence, receipt of the transcript and issuance of the decision within the permitted time period. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of this matter. Accordingly, the requests for extensions of the compliance dates were granted.

The current compliance date is February 20, 2022. The record closed on January 26, 2022, upon my receipt of the final transcript.

Positions of the Parties The parent asserts that the district failed to provide a timely IEP or placement for the 2020-2021 school year (“SY”). The parent unilaterally enrolled the student in REDACTED (“the school) which it is asserted was appropriate and for which district funding is sought. The parent asserts that the equitable considerations provide no basis for denial or limitation of funding. The parent received partial payment for the tuition for the 2020-2021 SY through pendency and seeks payment for any balance remaining. The parent also seeks reimbursement for an independent Psychoeducational and Neuropsychological Evaluation obtained by the parent and provided to and relied upon by the CSE. (Ex. A, T89-95)

The district did not appear and has asserted no position.

Cases Presented The district presented no evidence, testimonial or documentary.

Documents presented by the parent were admitted into evidence (a list of documents in the record is attached) and the following testified on behalf of the parent: the School Middle School Director (“the director”); the student’s mother (“the parent”).

Findings of Fact and Conclusion of Law

A) Background Factual Findings The student was REDACTED during the 2020-2021 SY. His diagnoses include language disorder, ADHD-inattentive type, developmental coordination disorder, specific learning disorder with impairment in reading, written expression and math, REDACTED. (Exs. D, Y, U)

Since the student’s 2017 evaluation the CSE had conducted no cognitive or academic functioning evaluations despite parent request. Accordingly, in order to prepare for an expected upcoming evaluation, the parent obtained an independent Psychoeducational and Neuropsychological Evaluation (“the Evaluation”) at the cost of $6000. The information from that evaluation was subsequently utilized by the CSE in its development of an untimely IEP for the school year at issue. (T145, 146-149, 151-152, Exs. T, U, D)

B) Analysis The legal standard applicable to a request for reimbursement for educational services is well established. Reimbursement is granted if: (1) the services offered by the Board of Education are inadequate or inappropriate (Prong 1); (2) the services selected by the parent are appropriate (Prong 2); and (3) equitable considerations support the parent's claim (Prong 3). Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Department of Educ. of Mass., 471 U.S. 359 (1985). In New York State the DOE bears the burden of proof with regard to Prong 1 and the parent bears the burden of proof with regard to Prong 2. Educ. Law 4404[1][c]

Prong 1 The district did not appear, presented no evidence and stated no position with regard to parent claims. It has therefore not met its burden to establish that it provided a FAPE for the 2020-2021 SY.

Prong 2

When a public school system has failed to provide FAPE, the program and services chosen by the parent are “proper under the Act” if the education provided is “reasonably calculated to enable the child to receive educational benefits.” Carter, 510 U.S. at 14. The parents bear the burden of proof with regard to the services obtained by the parents for the student. However, parents are not barred from reimbursement if their program does not meet the IDEA definition of a FAPE. See 20 U.S.C. §1401(9), Frank G. v. Bd. of Educ. of Hyde Park., 459 F. 3d 356 (2nd Cir. 2006). It is not required that the provider of the services be State-approved to provide instruction to children with disabilities. Carter, 510 U.S. at 10. The student need not be the least restrictive environment. Frank G, 459 F. 3d at 364.. “Ultimately the issue turns on whether a placement…is ‘reasonably calculated to enable the child to receive educational benefits.’ [internal citations omitted] …”, Frank G, 459 F. 3d at 130. No one factor is necessarily dispositive in determining that. Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982). Parents 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 364-365. See also Gagliardo v. Arlington Cent. Sch. Dist., 489 F 3d. 105, 115 (2d Cir. 2007). However, the program should reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances. Endrew F. v. Douglas County School District, 580 U.S. ___ (2017), 2017 WL 1066260 (March 22, 2017). Although the restrictiveness of a parental placement may be considered as a factor in determining entitlement to an award of tuition reimbursement, parents are not as strictly held to the standard of placement in the LRE as are school districts. C.L. v. Scarsdale UFSD, 744 F. 3d 826, 830, 836-37 (2d Cir. 2014); see Carter, 510 U.S. at 14-15; M.S., 231F.3d at 105 and “the totality of the circumstances” must be considered in determining the appropriateness of the unilateral placement, Frank G., 459 F. 3d at 64.

The testimony and evidence presented by the parent was credible and uncontroverted.

The testimony of the witnesses, supported by documentary evidence, established substantial academic, related service and social/emotional special education needs and included his diagnoses and the basis for disability classification. (T119-120, 135, 140-142, Exs. D,U,V, W,Y). Further, the evidence is persuasive that the placement appropriately addressed those needs by providing a program which included, among other things, a small classes and appropriate grouping (T 104, 106, 118, 123, 127-128), necessary related services (T107-109, 128-130), appropriate curricula, methodology and support (110-112, 121-122124-127, Exs. I, O), appropriate staffing (T109, 123), collaboration within the School and with parents T(103, 109, 132) as well as assistance with appropriate Assistive Technology (T108). I note that the program is consistent with the recommendations of the Evaluation. (Ex. T) Further, the evidence shows that the student has progressed. (T131-132, 136, Exs. K, L. M. N) I find that the placement provided the student with educational instruction that was specifically designed to meet the student’s unique special education needs, supported by such services as were necessary to permit the student to benefit from instruction. I note that the district has asserted no objection or claim with regard to the appropriateness of the placement.

Based upon the foregoing I find that the parent’s burden to establish that the unilaterally selected program was appropriate has been met.

Prong 3 The determination of whether equitable factors support a parent’s claim for tuition reimbursement hinges, in large part, on whether or not a parent cooperated with the DOE and CSE. See generally Burlington, 471 U.S. 359; Carter, 510 U.S. 7; see also Mr. & Mrs. A ex rel. D.A. v. N.Y.C. Dep’t of Edu., 769 F. Supp. 2d 403, 430 (S.D.N.Y. 2011); see also N.R. ex rel. T.R. v. Dep’t of Educ. of City Sch. Distr. Of N.Y., No. 07 Civ. 9648, 2009 WL 874061, at *14 (S.D.N.Y. Mar. 31, 2009). It is well established that a parent’s subjective intent, or preference for a nonpublic educational setting, is not relevant to a determination of the equities, even if, in seeking tuition funding, the parent has, as “[p]resumably, nearly all parents who make unilateral placement... and then seek tuition reimbursement, act[ed] at least in part out of a hope, belief, or expectation that the school district [would] ultimately be forced to fund [the] placement,” Mr. & Mrs. A. ex rel. D.A., 769 F. Supp. 2d at 430; see also N.R. ex rel. T.R. 2009 WL 874061, at *14. See also C.L. v. Scarsdale UFSD, 744 F. 3d 826 (2d Cir. 2014) (“[Parents] pursuit of a private placement was not a basis for denying their tuition reimbursement, even assuming…that the parents never intended to keep [the student] in public school.”)

The district has the burden or proof with regard to the equities. No claim or evidence with regard to this has been submitted by the district. Further, I conclude that the evidence shows the parent cooperated with the DOE. (T143, Exs. B. D, Y) Accordingly, I find no basis in equity for denial or limitation of parent claims.

C) Reimbursement for the Evaluation

Parental payment for an IEE necessarily obtained due to CSE inaction has been established. Further the CSE subsequently relied upon that IEE in ultimately developing an IEP. (Ex. D) District failure to provide a FAPE for the 2020-2021 SY has been established. I note that under §§1412 and 1415 of the IDEA, a free appropriate public education is available to all children with disabilities residing in the State between the ages of 3 and 21, and courts and hearing officers have broad authority to grant such relief as they deem appropriate. 20 U.S.C. §§1412(a)(1), 1415(i)(2)(C)(iii); Forest Grove Sch. Dist. v. T.A, 129 S. Ct. 2484, 2492 (S. Ct. 2009); Frank G. v. Bd. of Educ., 459 F.3d 356, 371 (2d Cir. 2006); Appeal No. 08-052. I conclude that equitable considerations support reimbursement in the circumstances here.

ORDER

The district shall immediately pay the parent for tuition at the School for the 2020-2021 SY ($71,739) reduced by the amount previously paid by the district pursuant to the pendency agreement between the parties..

The district shall immediately reimburse the parent for the Evaluation in the amount of $6000.

Dated: February 6, 2022

_________/s/_____________

JUDITH SCHNEIDER, ESQ.

Impartial Hearing Officer

PLEASE TAKE NOTICE

The parent and/or the New York City Department of Education has a right to obtain a review of this decision by a State Review Officer of the New York State Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act. The Department of Education has designated the New York City Law Department to accept service of papers on its behalf, including appeals of decisions of Impartial Hearing Officers.  Such service is made at 100 Church Street, New York, NY 10007 at the Messenger Center.

EXHIBITS

District

NONE

Parent

• • Impartial Hearing Request and Pendency Form, 9/16/20, 8 pgs.
• • Ten Day Notice, 8/25/20, 1 pg.
• • Prior Written Notice, 2/10/21, 11 pgs.
• • IEP, 1/20/21, 26 pgs.
• • DOE Reimbursement Check, 5/25/21, 2 pgs.
• • School Enrollment Contract Tuition Affidavit, 2//4/21, 1 pg.
• • School Enrollment Contract. 2/20/20, 5 pgs.
• • School Attendance, 2020-2021, 1 pg.
• • School Class Schedule, 2020-2021, 4 pgs.
• • WITHDRAWN
• • School Mid Year Narrative, 2020-2021, 4 pgs.
• • School Trimester 2 Report. 2020-2021, 4 pgs.
• • School Trimester 3 Report, 2020-2021, 9 pgs.
• • School Year End Report, 2020, 12 pgs.
• • School Course Description, Undated, 3 pgs.
• • School Distance Learning Plan, Undated, 2pgs.
• • OSH Physician Review Form for Transportation Requests, 1/14/21, 2 pgs.
• • Request for Medical Accommodations, 12/3/20 1 pg.
• • IEP Meeting Follow UP Letter, 12/3/20, 1 pg.
• • Psychoeducational and Neuropsychological Evaluation, 2020, 36 pgs.
• • Psychoeducational and Neuropsychological Evaluation Receipt, 5/25/20, 1pg.
• • Letter from Ophthalmologist, 3/19/20, 1 pgs.
• • Letter from Optometrist,, 2/25/20, 1 pg.
• • DOE Evaluator Form, 2/24/20, 5 pgs.
• • IEP, 12/3/20, 22 pgs.

Impartial Hearing Officer

NONE