New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 551390 NYC: 207630

FINDINGS OF FACT AND DECISION REDACTED

NAMES AND TITLES OF PERSONS WHO APPEARED

OCTOBER 15, 2021 *

For the Student:

"REDACTED", ESQ., Attorney

For the Department of Education:

NAMES AND TITLES OF PERSONS WHO APPEARED

December 15, 2021 *

For the Student:

"REDACTED", ESQ., Attorney

"REDACTED", ESQ., Attorney

"REDACTED", Parent Student

"REDACTED", Reading Tutor

"REDACTED", Advocate at IEP Meeting

"REDACTED", PsyD, Neurologist, "REDACTED" Institute

"REDACTED", Psychologist

"REDACTED", CSE Liaison, The "REDACTED" School

For the Department of Education:

NONE

* All appearance were by telephone.

This case was brought before me 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" is REDACTED-year-old student whose parents "REDACTED" brought the instant hearing, arguing that the DOE had failed to provide REDACTED with a free appropriate public education (FAPE) for the 2020-2021 school year.

The hearing convened for hearing on October 15, 2021, and a request for an adjournment was made. The hearing reconvened on December 15, 2021, at 9:00 am. The hearing began at about 9:20 am and was held without the appearance of a representative of the district. The hearing officer in this case called the District Representative's office and was informed that someone would join, however, no one ever did. 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 March 31, 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 tuition reimbursement for the unilateral placement of the student in the 2021-2022 at The Winward School.

As noted, hearing was conducted December 15, 2021, with no appearance of the District. At that time, the Parent's attorney stated that because the Department of Education was not present and did not offer any evidence, it could not meet its burden of demonstrating that they failed to offer the student a FAPE for the 2020/2021 school year.

Parents also noted that the uncontroverted testimony of the affidavits of six witnesses and the evidence in the record demonstrated that the student's needs were met at the school at which the student was unilaterally placed. Lastly, parent's attorney argued that the request for tuition reimbursement is in keeping with the equities in this case.

FINDINGS OF FACT

A Ten-Day Notice with Proof of Delivery (Parent's Exhibit A) demonstrated that the district received the requisite notice regarding the Parent's intention to place the child at the named school. Also, a Neuropsychological and Educational Evaluation (Parent's Exhibit C) stated that the student should be placed in a small and structured environment with support and guidance. According to the evaluation, the student needed learning specialists and special accommodations among other things.

An affidavit of the Committee on Special Education Liaison and Parent Representative for the "REDACTED" School (Parent's Exhibit Q) attested to the facilities and programs offered there and personally observed the student and based on his review of the evaluative material, it was his professional opinion that the placement was appropriate for the student. She received significant educational benefit from the specialized instruction and individualized supports.

An affidavit of a reading specialist (Parent's exhibit R) noted that she personally worked with the student and observed that she had a serious delay in her pre reading skills, and with her assistance the student made significant progress.

Parent's Exhibit S (See attached) is an affidavit of someone who treated the student beginning at 4 years old and would meet with her weekly to deal with her anxiety. She concluded that the unilateral placement was appropriate for the student. Affidavit testimony of a psychologist (Exhibit T) also concluded that the placement appropriate.

Lastly the affidavit of the mother (Parent's Exhibit U) explains that the student was developmentally behind her classmates in both language and fine motor skills, continued to suffer from attentional issues and was unable to remain seated. She was referred to the DOE, however due to delays in getting evaluations, the parents initiated private speech and language therapies. The student also underwent evaluations. The mother attended various Committee on Preschool Special Education meetings to Individualized Education Programs were created for the student. The student was subsequently privately evaluated and after attempting to connect with the DOE regarding her intention to unilaterally place her daughter at the "REDACTED" because the public school did not have the support that the student needed.

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 did not appear and therefore did prove that it provided the child with a FAPE in the 2020-2021 school year, nor did it provide documentary evidence and witness testimony.

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 [REDACTED]. 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 district offered an educational program designed to meet the student's special education needs. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 98-76; Application of a Child with a Disability, Appeal No. 94-29. 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 The "REDACTED". I credit the description of the school's representatives and specialists as a school that is appropriately meeting the student's needs.

For all the above, I find that the parents have demonstrating the appropriateness of the program at The "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).

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 from the district, nor any evidence to suggest an issue. Under the circumstances, analysis of equities would not prevent an award for the student's tuition at The "REDACTED" School. Direct payment.

The parent has also requested direct funding to the school. In Connors vs. Mills, 34 F.Supp.2d 795 (NDNY, 1998), the Court stated that once the Burlington/Carter prerequisites are met, the issue is not the fact of payment, but the timing of that payment, and stated that when "…a parent shows that his or her financial circumstances eliminate the opportunity for unilateral placement in the non-approved school, the public school must pay the cost of private placement immediately." An impartial hearing officer can order prospective tuition funding, where in circumstances to hold otherwise would be to deny a child the right to access to services under the IDEA. Sabatini v. Corning-Painted Post Area School District, 78 F.Supp. 2d 138 (USDC, WDNY).

In this case, the District did not provide any evidence disputing the cost of tuition at The "REDACTED" School.

ORDER

The DOE shall directly fund REDACTED tuition at The "REDACTED" for the 2021-2022 school year at a cost not to exceed $65,000.00.

IT IS SO ORDERED.

Dated: March 3, 2022

_Annette Hicks Gill

ANNETTE HICKS GILL, ESQ.

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

DEPARTMENT OF EDUCATION EXHIBITS *

None

PARENT EXHIBITS

A. Filed Due Process Complaint, 3/31/21, 10 pages

B. Ten Day Notice with proof of Delivery, 8/27/20, 3 pages

C. Neuropsychological and Educational Evaluation – "REDACTED", 01/14/2020, 01/16/2020, 01/29/2020, 02/20/2020, 15 pages.

D. The "REDACTED" School – Program Description, 2020-21 School Year, 2 pages

E. The "REDACTED" School – Remote Learning Program Description, 2020-21 School Year, 3 pages

F. The "REDACTED" School – Enrollment Contract 2020-21 School Year, 6/16/20 8 pages

G. The "REDACTED" School – Attendance, 2020-21 School Year, 4 pages

H. The "REDACTED" School – Class Schedule, 2020-21 School Year, 1 page

I. The "REDACTED" School – Progress Report, November 2020, 8 pages

J. The "REDACTED" School – Progress Report, February 2021, 10 pages

K. The "REDACTED" School – Progress Report, June 2021, 10 pages

L. The "REDACTED" School – Tuition Affidavit, 10/28/21, 1 page

M. Parent Emails with "REDACTED", 6/19/21 2 pages

N. Parent Emails with "REDACTED", 6/19/21 2 pages

O. Parent Emails with "REDACTED", 06/20/2020- 06/21/2020 4 pages

P. Proof of Payments, 2020-21 School Year, 21 pages

R. Affidavit of Testimony – "REDACTED", 12/06/2021, 4 pages

S. Affidavit of Testimony – "REDACTED", PhD, 12/08/2021, 3 pages

T. Affidavit of Testimony – "REDACTED", Psy.D., 12/08/2021, 9 pages

U. Affidavit of Testimony – "REDACTED", 12/08/2021, 10 pages

V. Affidavit of Testimony – "REDACTED", 12/08/2021, 5 pages