Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

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 Parents filed the complaint notice on February 18, 2021. (Ex. A) I was appointed as the IHO on February 19, 2021. A hearing was held across multiple dates.^[1] The Parents introduced exhibits AY into the record and called one (1) witness: the Parent/Mother. The District did not offer any exhibits, nor did they have any witnesses testify on their behalf.

a. Parents' Position

The Parents allege that the District failed to provide the Student a Free Appropriate Public Education ("FAPE") for the 2020-2021 SY. (Ex. A-1). The Parents note that they provided the Committee on Special Education ("CSE") a written notice of their intent to unilaterally enroll the Student at the Private School if the CSE failed to remedy the defects included in the letter. (Ex. A-1). As a remedy the Parents seek reimbursement for the tuition and transportation costs associated with the unilateral placement of the Student at the Private School.

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

On June 24, 2020, a CSE meeting was held to develop an Individualized Education Plan ("IEP") for the Student.^[2] (Ex. A-5). The Parents expressed their disagreement with the CSE's recommendations in a ten-day notice letter, dated August 25, 2020. (Ex. B-6). In the letter, the Parents advised the District of their intent to unilaterally place the Student at the Private School for the 2020-2021 SY. (Ex. B-1). Finally, on February 18, 2021, the Parents formally requested an impartial hearing. (Ex. A).

d. Student History

The Student was [REDACTED] years old at the start of the 2020-2021 SY. On April 30, 2018, the Student underwent a psychological evaluation. (Ex. D). The evaluator outlined the Student's academic history:

[The Student's] mother reported longstanding academic difficulties, primarily due to his lack of self-confidence, self-image, and difficulties with studying.

More recently, [he] has exhibited increasing anxiety about failing his academics; his anxiety reportedly overwhelmed him and he was unable to focus, work efficiently, and study on his own. [The Student's] father estimates that [his] academic difficulties began when he started 9th grade in a very competitive school. He would reportedly refuse to study, seek support, and suffered from anxiety. Over the past few months, [the Student's] anxiety complicated attending school on a few occasions out of fear of not being able to hand in assignments or tests. [The Student's] father added that [the Student] has a very low tolerance for his academic failures. [The Student] expressed that prior to entering high school, he was used to having things go his way. When he began

9th grade, he was challenged and due to his low frustration tolerance, he "gave up". [The Student] expressed that school is very important to him and that trying his best is his goal. (Ex. D-3).

The Student presents with the following diagnoses:

• 314.01 (F90.02) Attention Deficit Hyperactivity Disorder, Combined Presentation

• 301.13 (F34) Cyclothymic Disorder, with Anxious Distress

• 304.30 (F12.20) Cannabis Use Disorder, Moderate

• V61.20 (Z62.820) Parent-Child Relational Problem

• V61.8 (Z63.8) High Expressed Emotion Level Within Family. (Ex. D-25).

It is with this background that I now turn to the legal considerations of the IDEA.

e. Legal Overview

I begin with the legal framework of the Individuals with Disabilities Education Act ("IDEA").

A state receiving federal funds under the IDEA must provide disabled children with a free and appropriate public education ("FAPE"). Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005). To ensure that qualifying children receive a FAPE, a school district must create an individualized education program ("IEP") for each such child. See 20 U.S.C. § 1414(d); Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 297 F.3d 195, 197 (2d Cir. 2002) (describing the IEP as the "centerpiece" of the IDEA system). The IEP is "a written statement that sets out the child's present educational performance, establishes annual and short-term objectives for improvements in that performance, and describes the specially designed instruction and services that will enable the child to meet those objectives." D.D. ex rel. V.D. v. N.Y.C. Bd.

Of Educ., 465 F.3d 503, 507-08 (2d Cir. 2006) (internal quotation marks omitted). The IDEA requires that an IEP be "reasonably calculated to enable the child to receive educational benefits." Bd. of Educ. v. Rowley, 458 U.S. 176, 207, 102 S. Ct. 3034, 73 L. Ed. 2d 690 (1982). R.E. v. New York City Dep't of Educ., 694 F.3d 167 (2nd Cir. 2012).

In New York, the state has assigned responsibility for developing IEPs to local

Committees on Special Education ("CSEs"). N.Y. Educ. Law § 4402(1)(b)(1); Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 123 (2d Cir. 1998). CSEs are comprised of members appointed by the local school district's board of education, and must include the student's parent(s), a regular or special education teacher, a school board representative, a parent representative, and others. N.Y.

Educ. Law § 4402(1)(b)(1)(a). The CSE must examine the student's level of achievement and specific needs and determine an appropriate educational program. Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107-08 (2d Cir.

2007). R.E., 694 F.3d 167 (2nd Cir. 2012). If a parent believes that his child's IEP does not comply with the IDEA, the parent may file a "due process complaint" (a type of administrative challenge unrelated to the concept of constitutional due process) with the appropriate state agency. 20 U.S.C. § 1415(b)(6). In such cases, the IDEA mandates that states provide "impartial due process hearings" before impartial hearing officers ("IHOs"). Id. § 1415(f). Under New York's administrative system, the parties first pursue their claim in a hearing before an IHO. N.Y. Educ. Law § 4404(1). Either party may then appeal the case to the state review officer ("SRO"), who may affirm or modify the IHO's order. Id. § 4404(2). Either party may then bring a civil action in state or federal court to review the SRO's decision. 20 U.S.C. § 1415(i)(2)(A). R.E., 694 F.3d 167 (2nd Cir. 2012).

III. Prong I

a. Did the District Present a Prima Facie Case?

i. Legal Standard

1. Procedural Standard

Detailed procedural provisions lie at the heart of the IDEA. 20 U.S.C. §§ 612 and 615; 34 C.F.R. §§300.300-300.576; Evans v. Rhinebeck Central School District, 930 F. Supp. 83 (S.D.N.Y. 1996); B.E. R.R. v. State Bd. of Educ. 874 F.2d 1036, 1041 (5th Cir. 1989). In order to achieve the goal of providing all children with eligible disabilities with a FAPE, the IDEA statute requires that the states comply with "extensive procedural rights and safeguards" in order to receive federal funds for use in special education programs. See 20 U.S.C. § 615(a); LIH v. New York City Board of Educ., 33 IDELR 1 (E.D.N.Y. 2000); J.G. v. Board of Education of the Rochester City Sch. Dist., 830 F.2d 444, 445 (2d Cir. 1987).

In evaluating whether the District has complied with the procedural requirements of the IDEA, I consider whether the alleged procedural violation either 1) impeded the Student's right to a free and appropriate public education, 2) significantly impeded the Parent's opportunity to participate in the decision making process regarding the provision of a free and appropriate education, or 3) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); see also, Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp.2d 415, 419 (S.D.N.Y. Jan. 9, 2007), Application of a Child with a Disability, Appeal No. 07-007.

2. Substantive 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

I first look to the Parents' allegations to determine the scrutiny to apply in evaluating the District's presentation. In their ten day notice letter to the District, the Parents voiced the following concerns:

To date, the CSE has failed to develop a procedurally and substantively appropriate Individualized Education Program ("IEP") for [the Student], a student with a disability. An IEP meeting was held for [him] on June 24, 2020 to develop a program for the 2020-2021 school year. The IEP team was not duly constituted, as several required members were not present, including anyone expected to teach [the Student] under this IEP, currently employed as a DOE classroom teacher, or with experience in the recommended setting.

The team did not conduct, secure, or rely on sufficient evaluative measures to make a determination of the student's present levels of performance, educational and cognitive profile, and areas of need, including functional behavioral needs.

The CSE representative indicated that additional vocational testing (a Level 2 vocational assessment) was required that had not been completed. The Parents consented to all evaluations well in advance of the meeting to ensure the DOE could conduct all required evaluations. The DOE still has not conducted the additional vocational assessment of [the Student]. The team failed to adequately consider and rely upon the findings and recommendations of the evaluative material provided by the Parents. The CSE significantly impeded the ability of the Parents to participate in the development of the IEP.

At this IEP meeting, the CSE recommended a 15:1 special education class in a community school with group counseling 1x weekly and individual counseling

2x monthly with double time test accommodations for [the Student], with interim placement in a [district specialized] school until an appropriate school could be located for him. This recommendation was not consistent with or supported by the weight of the information provided and available to the team.

The program failed to provide a setting suitably structured and supportive to meet [the Student's] needs, especially in light of the student's most recent educational setting, and was not the least restrictive environment for the student.

The program did not include adequate supports to address the student's management needs or achieve the recommended annual goals. The CSE representative recommended maintaining all of the same goals from [the Student's] prior IEP which was developed almost two years prior. The goals were not individualized to [the Student] current functional levels. The Parents vehemently disagreed with the recommendation of the CSE, noting that [the Student] required a residential program, he required very small classes, 1:1 instruction and support for executive functioning, as well as individual therapy and individual psychiatric counseling weekly. The Parents expressed that [the Student] required significant social support and adult supervision to manage attending school at all, as he experienced significant social withdrawal and school refusal. The Parents expressed that [the Student] required a wraparound program that provided a team approach to his education with sufficient executive functioning coaches, social supports, psychotherapy, psychiatric consultation, and individualized, specialized instruction. The CSE representative acknowledged that many students who attend [] school end up in a therapeutic boarding school setting, but refused to recommend this program for [the Student's] 2020-2021 IEP.

Furthermore, the team failed to address the student's needs during periods of remote instruction or provide adequate supports for remote instruction, despite the IEP meeting having taken place during the COVID-19 pandemic, while the student was then being instructed remotely, and with the clear expectation that the student would be instructed during at least part of the period of time covered by this IEP through remote instruction.

The CSE failed to provide the Parents with the IEP purportedly developed at the 6/24/20 IEP meeting. The CSE has furthermore failed to make any placement recommendation for [the Student]. [He] currently has no special education program in place for the upcoming school year. The Parents therefore have no choice but to reject the program proposed by the CSE. (Ex. B.5-6).

This is the backdrop in which I weigh the District's recommendations, ever mindful that the District has the burden of proof. 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. The District conceded Prong I to the extent that they did not defend their recommended program or placement. L.O. v. N.Y. City Dep't of Educ., 822 F.3d 95, 111 2016 U.S. App. LEXIS 9239. There was no testimony indicating the nature of the CSE deliberations, or even if such deliberations occurred. Rather, I am left to speculate concerning the particulars of the review process, the rationale employed by the CSE members and the discussions that may or may not have contributed to a final recommendation. Further, given the myriad specific substantive allegations against the school, and the failure to defend, I find that the District fell short of their burden in this case.

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 his individualized needs. I, therefore, rule for the Parents on Prong I.

IV. Prong II

a. Legal Issue: Did the Parents Establish the Appropriateness of the Private School?

i. Legal Standard

Having determined that the District failed to offer the student a FAPE for the 2020-2021 SY, the next inquiry focuses on whether the parent's unilateral placement of the student at the Private School was appropriate. In doing so, I must consider whether the Parents met their burden of proving the appropriateness of the unilateral placement of the Student at the Private School. 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

Per the program description of the Private School:

[T]he Private School is recognized as a unique educational setting whose faculty, staff, and facilities exist to nurture the optimal growth of students with a range of talents, abilities, and interests in a supportive, diverse, and community-oriented environment that promotes and values intellectual challenge, the arts, athletics, and cultural competence. (Ex. H-1).

The Mother testified on her own behalf to demonstrate the appropriateness of the Private School where she unilaterally placed her child. She noted that the Private School "provided the structure and support both in the classroom and outside of the classroom that [the Student] needed to be successful in school." (Ex. W-10). It is also apparent from the 2020-2021 SY grades that the Student benefited at the Private School. (Ex Q).

iii. Conclusion

In addition to considering the testimony and observations of the Mother. I am mindful of the unique and complicated profile of the Student as outlined above in the "Student History" and is amplified throughout the record. To conclude, I find that the Private School provided educational instruction specially designed to meet the unique needs of the Student. I credit the Parents' exhibits (H, K, L, M, N & O) and testimony 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 Parents 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 3). The burden of proof

3 § 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. 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])

(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))

ii. Analysis

The Parents sent a ten-day notice letter in a timely manner, expressing their intent to unilaterally place the Student at the Private School for the 2020-2021 SY. In the letter, the Parents informed the District that he would seek funding from the District for the placement. (Ex. B-1).

iii. Conclusion

Upon review of the record, I find that the Parents 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 directly pay/reimburse the Private School/Parents for cost of tuition at the Private School, where they unilaterally placed the Student for the 2020-2021 SY.

Dated: September 15, 2023

Martin J. Kehoe, III

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.

Footnotes

[1] A hearing was held across the following dates: October 4, 2021; December 10, 2021; March 25, 2022; May 16, 2022; August 29, 2022; November 4, 2022; January 24, 2023; May 18, 2023; and August 16, 2023.

[2] At the meeting, the CSE recommended a 15:1 special education class in a community school with group counseling (1 x weekly) and individual counseling (2 x monthly) with double time test accommodations for the Student, with an interim placement in a district specialized school until an appropriate school could be located for him.