NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
SED number 549480 NYC number 205839
FINDINGS OF FACT AND DECISION
Case Number: 205839
Student’s Name: Redacted
Hearing Requested By: Parents
District: REDACTED
Hearing Officer: Martin J. Kehoe III, Esq.
Actual Record Close Date: April 15, 2022
Table of Contents
I. Introduction 3
II. Overview 3 a. Parents’ Position 3 b. District’s Position 4 c. Background of the Case 4 d. Student History 4 e. Legal Overview 5
III. Prong I 7 a. Did the District Present a Prima Facie Case 7 i. Standard 7 ii. Analysis 8 iii. Conclusion 8
IV. Prong II 8 a. Legal Issue: Did the Parents Establish the Appropriateness of the Private Placement? 8 i. Legal Standard 8 ii. Analysis 9 iii. Conclusion 11
V. Prong III 11 a. Legal Issue: Did the Parents Cooperate with the District? 11 i. Legal Standard 11 ii. Analysis 13 iii. Conclusion 13
I. Introduction
This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (IHO) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the New York State Education Laws. The School District will be referred to as District, the parent(s) as Parent(s) and the student will be referred to as Student.
II. Overview
This is a “reimbursement” case. A board of education may be required to reimburse parents for their expenditures for private education services obtained for a student by his or her 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. Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); Sch. Comm. Of Burlington v. Dep’t. of Educ., 471 U.S. 359, 369-70 (1985). The analytical framework for deciding a reimbursement case is typically called a three-prong analysis.
This case involves a demand for tuition reimbursement for the 2020-2021 school year (SY). The Parent filed the complaint notice on January 11, 2021. (Ex. A) I was appointed as IHO on November 22, 2021. A hearing was across multiple days.[1] The Parents introduced exhibits A-J into the record and called two witnesses: the Parent/Mother (Ex. G) and the Educational Director of the Private School (Ex. J). The District did not offer any exhibits, nor did they call any witnesses. a. Parents’ Position The Parent alleges that the program recommended for the Student failed to meet the educational needs of the Student. More specifically, the Parent alleges that the Individualized Educational Program (IEP) offered by the District contained substantial procedural and substantive violations. (Ex. A) As a result, the Parent seeks tuition reimbursement at the Private School for the 2020-2021 SY. b. District’s Position The District did not present a Prong I case, introduce evidence, or bring any witness to testify on their behalf. c. Background of the Case
A Committee on Special Education (CSE) meeting was held for the Student on April 29, 2020, to develop an IEP for the Student. (Ex. A-1) The CSE team recommended the Student for a 12-month Extended School Year (ESY) in a 6:1:1 class at a specialized school. (Ex. A-1) The Parent attempted to contact the District to obtain information about the offered program, but the District did not respond to the Parent. (Ex. A-2)
On June 22, 2020, the Parent sent the District a ten-day notice rejecting the District’s recommended program, stating that the recommended 6:1:1 class failed to provide the Student with the 1:1 ABA and direct teaching the Student needed, in addition to failing to address the Student’s toileting needs and not providing the Student with a behavioral plan. (Ex. B-1) In the letter, the Parent notified the District of her intent to unilaterally place the Student at the Private School for the 2020-2021 SY. (Ex. B) d. Student History The Educational Director of the Private School described the Student as “an adorable little girl.” (Ex. J-2) The Student was REDACTED years-old during the beginning of the 2020-2021 SY and had a disability classification of Autism.[2] (Ex. G-1) The Student has a history of developmental delays and has suffered from failure to thrive and receives growth hormones to help her grow. (Ex. G-1) The Student has very limited language and has global delays in all aspects of her learning. (Ex. G-1) She is also not fully toilet trained and is dependent on adult support for all daily life skills. (Ex. G-1) The Student also exhibits maladaptive behaviors, such as rocking, rolling, hitting, and tantrums, and has little awareness of those around her and does not know how to engage or play with her peers. (Ex. G-1) e. Legal Overview The IDEA is a comprehensive statutory framework established by Congress to aid the states in providing disabled children with a free appropriate public education (“FAPE”). 20 U.S.C. § 612(a)(I). “A [FAPE] is available to all children with disabilities residing in the state between the ages of 3 and 21.” 20 U.S.C. § 612(a)(1)(A). The IDEA defines a FAPE as special education and related services that:
(A) have been provided at public expense, under public supervision and direction, and without charge,
(B) meet the standards of the state educational agency,
(C) include an appropriate preschool, elementary, or secondary school education in the state involved, and
(D) are provided in conformity with the individualized education program required under § 614(d) of this title. 20 U.S.C. § 601(9).[3]
A FAPE is crafted through the collaboration of the disabled student’s parents, teachers, and school district administrators and is recorded in an IEP. 20 U.S.C. § 614(d). The “core of the statute … is the cooperative process that [IDEA] establishes between parents and schools.” Schaffer v. Weast, 546 U.S. 49, 53 (2005). The IEP is, in brief, a comprehensive statement of the educational needs of a disabled child and the specially designed instruction and related services to be employed to meet those needs. 20 U.S.C. § 601(14). In New York State, the IEP is produced by a committee on special education (“CSE”), whose members are appointed by the board of education or trustees of the school district. N.Y. Educ. Law § 4402(1)(b)(1) (McKinney Supp. 2005).
The IDEA provides numerous procedural safeguards to protect the due process rights of disabled children and their parents. See generally, 20 U.S.C. § 615. These procedures include the opportunity for parents to obtain an IEE of the child (20 U.S.C. § 615(b)(I)) and file a complaint with the state or local educational agency (20 U.S.C. § 615(b)(6)). Any such complaint is resolved through an “impartial due process hearing” in which parents of disabled children have “an opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a [FAPE] to such child.” 20 U.S.C. § 615(b)(6). Parties to an administrative proceeding under the IDEA have the right to written findings of fact and decisions on any complaint about the provision of a FAPE. Polera v. Board of Education Newburgh, 288 F.3d 478, 482 (2nd Cir. 2002).
In New York State, “[t]he board of education or trustees of the school district or the state agency responsible for providing education to students with disabilities shall have the burden of proof, including the burden of persuasion and burden of production, in any such impartial hearing …” N.Y. Educ. Law § 4404 (1)(c), modifying the rule enunciated in Schaffer where “[t]he burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief.” Schaffer, 546 U.S. at 537.
III. Prong I a. Did the District Present a Prima Facie Case i. Standard
IDEA requires an educational program reasonably calculated to enable a child to make progress appropriately considering the child's circumstances. Endrew F. v. Douglas Co. School Dist. Re-1, 137 S. Ct. 988 (2017). This obligation of the District is accompanied by the requirement to demonstrate the appropriateness of the program recommended by its CSE. (Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed Dept Rep 487 [1983]). To meet its burden, a board of education must be able to “... offer a cogent and responsive explanation for their decisions...” Endrew F., Supra. ii. Analysis The Parent had numerous procedural and substantive violation claims against the District. First, the Parent alleged that the District ignored the recommendations of the reports provided to them, all of which detailed the need for a 1:1 ABA program. (Ex. A-2) However, the District said nothing regarding the Student’s need for a 1:1 ABA program. (Ex.s A, G) Second, the Parent alleged the Student’s IEP did not address why there was not a behavioral plan included for the Student. (Ex. A-2) Again, the District said nothing to the Parent in response to this claim. (Ex.s A, G) Third, the Parent attempted to contact the District to learn about the program offered to the Student, but the District did not respond to the Parent’s request for this information. (Ex.s A, G) Overall, the record establishes that the District did not attempt to cooperate with the Parents and were unresponsive to all of the Parent’s concerns. iii. Conclusion
Upon review, I find that the District failed to demonstrate that they met their burden in providing the Student an IEP tailored to meet her individualized needs. I, therefore, rule for the Parents on Prong I.
The District bore the burden of both production and persuasion to establish that it provided the Student with a FAPE as well as all other issues alleged in the DPC. N.Y. Educ. Law §4404(1)(c); See Application of a Student with a Disability, Appeal No. (“SRO No.”) 16-028; 13-200; SRO No. 11-091; SRO No. 11-053; (all holding that, in cases that do not involve a unilateral placement, the burden of proof is on the District). See also L.O. v. New York City Dep't of Educ., No. 15-1019, 2016 WL 2942301 (2d Cir. May 20, 2016).
In this case I am left to speculate concerning the particulars of the CSE review process, the rationale employed by the CSE members and the deliberations that may or may not have contributed to a final recommendation of IEP.
They did not call any witnesses to demonstrate that the IEP was appropriate or how it would be implemented in the District school, and failed to demonstrate that they provided a FAPE. L.O. v. N.Y. City Dep't of Educ., 822 F.3d 95, 111 2016 U.S. App. LEXIS 9239. The District ultimately failed to support their burden of proof. I, therefore, rule for the Parent on Prong I.
IV. Prong II a. Legal Issue: Did the Parent Establish the Appropriateness of the Private Placement? i. Legal Standard
I now consider whether the Parents met their burden of proving the appropriateness of the placement of the Student at the Unilateral Placement. On Prong II, New York federal courts have held that parental placements are “subject to fewer constraints than that applied to the school authorities.” Schreiber v. E. Ramapo Cent. Sch. Dist., 700 F. Supp 529 [S.D.N.Y. 2010] The Second Circuit has clearly stated:
“... [P]arents 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.” Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 [2d Cir. 2007] quoting Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d Cir. 2006]
Moreover, parents "may not be subject to the same mainstreaming requirements as a school board." Frank G. v. Bd. of Ed. of Hyde Park [2d Cir. 2006] quoting M.S. v. Bd. of Ed. of City Sch. Dist. of Yonkers, 231 F.3d 96, 105 [2d Cir. 2000] citing Warren G. v. Cumberland County Sch. Dist., 190 F.3d 80, 84 [3d Cir. 1999] (holding that "the test for the parents' private placement is that it is appropriate, and not that it is perfect").
ii. Analysis
Parent – Testimony The Parent testified that the Student has been receiving 1:1 ABA support at the Private School since the 2017-2018 SY. (Ex. G-1) The Parent stated that the Student was slowly learning by the breaking down of skills and intensive 1:1 ABA. (Ex. G-1) The Parent said that without 1:1 ABA support, the Student is not able to handle a classroom setting. (Ex. G-1) Overall, the Parent stated the Private School has appropriately met the Student’s needs and that she attributed the Student’s progress “to the intensive level of support, ABA intervention and coordination of services and programming available to [the Student] at [the Private School].” (Ex. G-2)
Educational Director of the Private School – Testimony The Educational Director testified that “[the Private School] is a 12-month program for children with Autism incorporating ABA services throughout the entire school day.” (Ex. J-2) Each classroom at the Private school provided 1:1 ABA instruction with trained ABA providers and a speech therapist in each classroom. (Ex. J-2) The Student’s class consisted of three students, which included 3 ABA instructors and a speech and language pathologist. (Ex. J-3) The Student was given an ABA program which addressed five main domains.[4] (Ex. J-3) The Student also received extensive 1:1 programming to address her maladaptive behaviors, and the Private School implemented a behavioral plan to address the Student’s maladaptive behaviors. (Ex. J-4) The Student also received speech services (5x45) and occupational therapy (5x45) at the Private School. (Ex. J-4)
The Educational Director testified that the Student made progress in all areas of development over the 2020-2021 SY. (Ex. J-3) The Student’s academic progress included increasing her language and communication skills, furthering her early reading skills, and learning to count to 20. (Ex.s J-3; J-4) Additionally, the Student became toilet trained for urine and bowel movements, which the Educational Director described as “a major accomplishment for [the Student] who had presented with significant maladaptive behaviors regarding toileting, and anything associated with being in the bathroom.” (Ex. J-4) The Student also “mastered independently washing and drying her hands, although the temperature of the water must be tested by an instructor.” (Ex. J-4)
The Educational Director testified that the District’s recommended program would not be appropriate for the Student because the Educational Director did not believe the Student “could handle a 6:1:1 program. Even in our 1:1 setting [the Student] still has struggles and there is a continued focus on her maladaptive behaviors so that in a 6:1:1 class there would not be enough adult intervention and teaching to address her needs.” (Ex. J-5) The Educational Director testified that the Student has made clear progress at the Private School, much of which could be attributed to the staff, environment, and intensive level of 1:1 ABA support that was provided to the Student. (Ex. J-5) iii. Conclusion
I find that the Private School provided educational instruction specially designed to meet the unique needs of the Student. I credit the Parents’ exhibits and witnesses for articulating the appropriateness of the placement in addition to the Student’s progress. The Parents have met their burden by establishing that such services were necessary to permit the Student to benefit from instruction. I, therefore, rule for the Parents for Prong II.
V. Prong III a. Legal Issue: Did the Parent Cooperate with the District? i. Legal Standard
A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents where equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148[5]). The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at 7 [S.D.N.Y. Aug. 27, 2010]).
Tuition reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the child from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense." (20 U.S.C. § 612[a][10][C][iii][I]; see 34 C.F.R. § 300.148[d]) This 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]) ii. Analysis The Parent sent a ten-day notice letter to the District informing them of her intent to unilaterally place the Student at the Private School and informed the District that she would seek funding from the District for the Private School. (Ex. B) The Parent also contacted both the school and CSE to learn about the recommended program, but neither school nor CSE responded to the parent. (Ex. A) The parent even again tried to contact the school again upon the reopening of the school buildings, however the school did not provide the Parent with any information about the proposed program. (Ex. A) iii. Conclusion
Upon review of the record, I find that the Parent cooperated with the District and did nothing to impede them from developing an appropriate IEP for the Student. As such, I find no reason for reduction in tuition reimbursement. I, therefore, rule for the Parents in Prong III.
It is therefore ORDERED
For the District to reimburse the Parents and/or directly pay the Private School for tuition at the Private School for the 2020-2021 SY.
Dated: April 15, 2022
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] A hearing was held on December 20, 2021; March 17, 2022; and April 4, 2022.
[2] NYCRR Part 200.1(zz)(1) Autism means a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age 3, that adversely affects a student’s educational performance. Other characteristics often associated with autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences. The term does not apply if a student's educational performance is adversely affected primarily because the student has an emotional disturbance as defined in paragraph (4) of this subdivision. A student who manifests the characteristics of autism after age 3 could be diagnosed as having autism if the criteria in this paragraph are otherwise satisfied.
[3] “Special education” is defined by the IDEA as specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a child with a disability, including (A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and (B) instruction in physical education. The term “related services” is defined as transportation, and such developmental, corrective, and other supportive services (including speech pathology and audiology, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, counseling services, including rehabilitation counseling, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children. 20 U.S.C. § 601(26).
[4] Language and Communication; Preacademic/Academic skills; Social and Leisure Skills; Activities of Daily Living; and Behavior.
[5] § 300.148 Placement of children by parents when FAPE is at issue. (a) General. This part does not require an LEA to pay for the cost of education, including special education and related services, of a child with a disability at a private school or facility if that agency made FAPE available to the child and the parents elected to place the child in a private school or facility. However, the public agency must include that child in the population whose needs are addressed consistent with §§ 300.131 through 300.144. (b) Disagreements about FAPE. Disagreements between the parents and a public agency regarding the availability of a program appropriate for the child, and the question of financial reimbursement, are subject to the due process procedures in §§ 300.504 through 300.520. (c) Reimbursement for private school placement. If the parents of a child with a disability, who previously received special education and related services under the authority of a public agency, enroll the child in a private preschool, elementary school, or secondary school without the consent of or referral by the public agency, a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if the court or hearing officer finds that the agency had not made FAPE available to the child in a timely manner prior to that enrollment and that the private placement is appropriate. A parental placement may be found to be appropriate by a hearing officer or a court even if it does not meet the State standards that apply to education provided by the SEA and LEAs. (d) Limitation on reimbursement. The cost of reimbursement described in paragraph (c) of this section may be reduced or denied (1) If - (i) At the most recent IEP Team meeting that the parents attended prior to removal of the child from the public school, the parents did not inform the IEP Team that they were rejecting the placement proposed by the public agency to provide FAPE to their child, including stating their concerns and their intent to enroll their child in a private school at public expense; or (ii) At least ten (10) business days (including any holidays that occur on a business day) prior to the removal of the child from the public school, the parents did not give written notice to the public agency of the information described in paragraph (d)(1)(i) of this section; (2) If, prior to the parents' removal of the child from the public school, the public agency informed the parents, through the notice requirements described in § 300.503(a)(1), of its intent to evaluate the child (including a statement of the purpose of the evaluation that was appropriate and reasonable), but the parents did not make the child available for the evaluation; or (3) Upon a judicial finding of unreasonableness with respect to actions taken by the parents. (e) Exception. Notwithstanding the notice requirement in paragraph (d)(1) of this section, the cost of reimbursement - (1) Must not be reduced or denied for failure to provide the notice if - (i) The school prevented the parents from providing the notice; (ii) The parents had not received notice, pursuant to § 300.504, of the notice requirement in paragraph (d)(1) of this section; or (iii) Compliance with paragraph (d)(1) of this section would likely result in physical harm to the child; and (2) May, in the discretion of the court or a hearing officer, not be reduced or denied for failure to provide this notice if - (i) The parents are not literate or cannot write in English; or (ii) Compliance with paragraph (d)(1) of this section would likely result in serious emotional harm to the child. (Approved by the Office of Management and Budget under control number 1820-0030) (Authority: 20 U.S.C. 1412(a)(10)(C))