New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 549137 NYC: 205527

FINDINGS OF FACT AND DECISION REDACTED

NAMES AND TITLES OF PERSONS WHO APPEARED

JANUARY 7, 2022 *

For the Student:

"REDACTED", ESQ., Attorney

For the Department of Education:

"REDACTED", District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

FEBRUARY 15, 2022 *

For the Student:

"REDACTED", ESQ., Attorney

REDACTED, Parent Student

For the Department of Education:

"REDACTED", District Representative

* All appearances were by video conference.

This case was brought before the undersigned Impartial Hearing Officer (IHO) pursuant to appointment by the New York City Department of Education (DOE) under the Individual with Disabilities Education Act (IDEA), 20 United States Code §1415(f)(1).

"REDACTED" (Student) is a REDACTED-year-old student whose parents "REDACTED" and "REDACTED" (Parents) brought the instant action, arguing that the DOE had failed to provide their child with a free appropriate public education (FAPE) for the 2019-2020 and the 2020-2021 school years.

The hearing was conducted on January 7, 2022 and continued on February 15, 2022. Extensions were granted in accordance with regulations and the record closed upon receipt of the remaining evidence.

DISTRICT AND PARENT POSITIONS

The due process complaint notice (DPCN) dated January 5, 2021, included multiple claims that the DOE had failed to provide Student an appropriate educational program and placement for the 2020-2021 school year, requesting reimbursement for unilateral placement at "REDACTED" because of the DOE's alleged failure to locate a program, public or private, that could implement the student's Individualized Educational Program (IEP). It further requested reimbursement for transportation costs for 2020-2021 and for out-of-pocket expenses related to needed services not provided by the NYCDOE, both during the 2019-2020 and 2020-21 school years.

At hearing on January 7, 2022, the IHO noted that a new request for the 2021-2022 school year had been filed following the previous hearing date, and when asked the District's position on consolidation, the District's attorney stated there was opposition to consolidating the cases because they are for two separate school years. As such, the IHO submitted an order denying consolidation of the cases. At the continued hearing held February 15, 2022, the District stated that the case was still under investigation and as such was not prepared to present any evidence or witnesses and was resting its case.

The Parents offered documentary evidence including affidavits and the Student's mother gave oral testimony.

FINDINGS OF FACT

On February 28, 2020, the CPSE developed an IEP for the Student which indicated that the student continued to present delays in key skills and motor weaknesses among other things. It contained Occupational, Educational, Speech, Physical Therapy goals. It also recommended a Special Class with 10:1:2 ratio. A particular course was recommended to begin March 2, 2020. A subsequent IEP was conducted on June 23, 2020, which made similar recommendations as the February 28, 2020 IEP. On July 15, 2020, and the DOE issued a Notice of Recommendation for a public-school placement. (Parent's Exhibit I). The student also underwent Psycho-Educational, Occupational Therapy and Neuropsychological evaluations (Parent's Exhibits D, G, & H).

When the Parent learned that the DOE placement would not have a class that could implement the student's IEP after speaking with the principal of that school. (Parent's Exhibit V). The student's mother stated in her affidavit that the principal told her that the student required a different school. The school did not have the required student teacher requirement outlined in the IEP. The parents repeatedly informed the DOE that the child was not offered any program or placement consistent with the IEP.

On October 5, 2020, the Parents placed the Student at the "REDACTED" which could meet the student's needs. (Parent's Exhibit V). The parents incurred costs for tuition and transportation. They also had to seek additional services as outlined in an IESP dated November 4, 2020. (Parent's Exhibit J). The IESP recommended SETSS, Occupational Therapy, Physical Therapy, and Speech-Language Therapy, however, the DOE never provided any SETSS or any related services under the IESP. As such, the parents obtained sessions for the student privately, at their own expense.

The parents observed that the student made great progress at "REDACTED". The student overcame some of his delays, was better able to relate with other students and carry on reciprocal social interactions and play. His communication skills improved. Furthermore, Neuropsychologist "REDACTED", Psy.D. noted that the student made improvements and an exhibited an increase in fundamental ability. He stated that during his time at "REDACTED" Preschool, the student became increasingly better able to participate in academics. Specifically, the neurologist stated that the Parent's placement in that school was in accordance with his recommendations as the child has already benefited and will continue to benefit from that placement.

Lastly, the Director of the "REDACTED" stated that over the course of the student's participation in the program, he improved in his ability to engage in academic instruction and relate to his peers. He became better able to initiate and engage in social interactions on his own, and his overall skills improved. (Parent's Exhibit U).

Another CSE meeting was held for the student on May 11, 2021, at which time the Parents complained the SETTS and related services called for in the November 2, 2020 IESP were not being provided. As a result, the parents paid for the following services (See Parents Exhibits P, Q, R, and V):

Occupational Therapy, $2,600 Physical Therapy, $630 Speech-Language Therapy ("REDACTED", Inc.), $4,445 Speech-Language Therapy "REDACTED", P.C.), $8, 275

REDACTED, Inc., $4,635

The total cost of the private services provided to the student between March 2020 and June 2021 including the preschool program was $21,215.

The Parents also incurred travel expenses to transport the student to and from school traveling. (Parent Exhibit V).

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 in the 2019-2020 and 2020-2021 school years, neither did he provide any documentary evidence or witness testimony. The District also did not note any issues concerning equity in this matter, outside of a brief cross-examination of the Parent about transportation distance and amount of days.

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. 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 stated that the student made significant progress at this placement by the Parent, the Director of "REDACTED", and the Neuropsychologist.

For all the above, I find that the parents have demonstrating 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, there was no objection form the district based on equities, nor any evidence to suggest an issue. 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 it is a 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 public-school placement was not able to meet the student's needs as demonstrated by the testimony of the District's Teacher and the Parent.

Should the hearing officer determine that the school district did not offer a FAPE to the student, the next inquiry is whether 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. EQUITIES.

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 or 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. Burlington, Carter.

In this case, the Parents informed the District that the placement was not appropriate for the Student, in fact, the Director at the public school agreed. The Parents' actions were reasonable, and they cooperated and communicated with the District. Further, the costs of the placement are reasonable.

ORDER

1. The DOE shall directly reimburse the Parents in the amount of $21,215 for tuition and other out of pocket costs.

2. The DOE shall also reimburse Parents for costs incurred in transporting Student to and from school at the prevailing INS Mileage Rate.

IT IS SO ORDERED.

Dated: May 18, 2022

_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 proceedings 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.

EXHIBITS

PARENT EXHIBITS DATE NO. OF PAGES

A. Due Process Complaint January 5, 2021 8 pages

B. Educational Report of Teacher "REDACTED" January 14, 2020 3 pages

C. Preschool IEP February 28, 2020 20 pages

D. Psycho-educational Evaluation April 22, 2020 2 pages

E. IEP June 23, 2020 18 pages

F. Email Exchange of REDACTED and "REDACTED" July 22, 2020 2 pages

G. Occupational Therapy Evaluation of August 3, 2020 9 pages

"REDACTED", OTR/L, CLC

H Neuropsychological Evaluation of September 21, 2020 13

Drs. "REDACTED"

I School Assignment Letter July 15, 2020 4 J IESP November 4, 2020 16 K Neuropsychological Addendum of April 6, 2021 4

Drs. "REDACTED"

L IEP May 11, 2021 32 M C.V. of "REDACTED" Undated 9 N "REDACTED"P.C. Invoices April 2020 to 4

June 2021 O "REDACTED", LTD Invoices June 2020 to 4

September 2020 P "REDACTED", Inc. Invoices - Occupational Therapy October 2020 to 8

June 2021 Q "REDACTED", October 2020 to 8

Inc. Invoices - Speech-Language Therapy June 2021 R "REDACTED", Inc. October 2020 to 9

Invoices - Preschool Program June 2021 S Cancelled Checks October 2020 to 7

November 2021 T Affidavit of "REDACTED", Psy.D., February 1, 2022 6

DABPS

U Affidavit of "REDACTED", Ph.D. February 8, 2022 3 V Affidavit of REDACTED February 8, 2022 12