New York City Department of Education, Impartial Hearing Decision

Case Number: 551518 – NYC: 207749

FINDINGS OF FACT & DECISION

Case No.: 207749

Student's Name: [REDACTED] (hereinafter referred to as "Student")

Date of Birth: [REDACTED]

District: [REDACTED] ("District")

Hearing Request by: [REDACTED] ("Parent(s)")

Hearing Date(s): 2/9/23

Record Close Date: 4/11/23

Hearing Officer: Sebastian A. Weiss, Esq.

Date of Decision: April 11, 2023

NAMES AND TITLES OF PERSONS WHO APPEARED:

For the Student:

[REDACTED]

("Parent Representative")

[REDACTED]

("Parent or Mother")

[REDACTED]

("Unilateral Placement Principal")

For the Department of Education:

None.

("District Representative")

BACKGROUND AND PROCEDURAL HISTORY

On April 9, 2021, the Parents filed a Due Process Complaint against the District which was subsequently amended on October 31, 2021, ("DPC"). The relief sought by the DPC includes payment of tuition for the Student's unilateral placement at [REDACTED] ("Unilateral Placement") for the 2021-22 school year ("School Year"). (Ex. A). ^[1]

The undersigned Hearing Officer was appointed to this case on December 6, 2021. The hearing on the merits was conducted on February 9, 2023.

ISSUES AND ARGUMENTS

PARENT CASE:

The DPC alleges that the District denied the Student a Free Appropriate Public Education ("FAPE") by not providing an appropriate Individualized Education Program ("IEP") or school placement for the Student for the School Year. (Ex. A)

In the DPC and at the hearing, the Parents allege the following: (Ex. A, T 95-7)

An IEP meeting was held for the Student on March 12, 2020. The Parents did not receive a copy of the IEP, Prior Written Notice, or School Location Letter until October 17, 2022, when a copy of the IEP and a school location letter were sent to the parent's attorney via disclosure by the District, long after the school year in question concluded.

The IEP recommended a general education class with Special Education Teacher Support Services ("SETSS") and related services in a community school. These are inappropriate as a general education classroom is to large and fails to offer a sufficient level of teacher support to meet the Student's needs. The Student requires a small classroom setting in a small full-time special education school where she can receive individualized and small group instruction to address her learning needs.

The District has provided no evidence or witness testimony, and has thus conceded Prong I [of the Burlington/Carter analysis].

The Unilateral Placement is a full-time special education school that provides academic instruction and supports for students with learning disabilities. The Unilateral Placement provided the Student with an appropriate special education program, including educational instruction and support specially designed to meet her needs.

The Parents presented twenty thirteen (13) alphabetically listed exhibits into evidence.

The Parents also presented the testimony by affidavit of two witnesses – the Unilateral Placement Principal and the Student's Mother.

DISTRICT CASE:

The District did not appear for the hearing and did not otherwise present any evidence. (Oct. 11 T 66)

SUMMARY OF APPLICABLE LAW

The IDEA is a comprehensive statutory framework established by the United States Congress to ensure that students with disabilities are afforded a FAPE. 20 U.S.C. §1400(d)(1)(A); see Schaffer v. Weast, 126 S. Ct. 528 (2005); Bd. of Educ. v. Rowley, 458 U.S.176 (1982); Frank G. v. Bd. of Educ., 459 F.3d 356 (2d Cir. 2006). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP, which is reasonably calculated to enable the student to receive educational benefit. See Rowley; 20 U.S.C. § 1401(9)(D); 34 C.F.R. § 300.17; see 20 U.S.C. § 1414(d); 34 C.F.R. § 300.22. The student's recommended program must also be provided in the least restrictive environment. 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. § 300.114(a)(2); 8 NYCRR 200.6(a)(1).

In Endrew F. v. Douglas County School District, 580 U.S. 999, 14 (2017), the Court held that, "[t]o meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances, as a focus on the particular child is at the core of the IDEA. The instruction offered must be "specially designed" to meet a child's "unique needs" through an "individualized education program." §§1401(29), (14) (emphasis added), to reflect the fact that a contemplated IEP must be focused on the "particular child that is at the core of the IDEA."

Pursuant to New York Education Law §4404(1)(c), the board of education shall have the burden of proof, the burden of persuasion, and the burden of production in impartial hearings except for instances where the parent is seeking tuition reimbursement for a unilateral parental placement and in those cases the parent shall have the burden of persuasion and the burden of production as to the appropriateness of the placement. The burden of proof in matters such as this shall only be met upon a fair preponderance of the evidence. The preponderance of the evidence standard requires the trier of fact to find that the existence of a fact is more probable than its nonexistence. Concrete Pipe & Products of California, Inc. v. Construction Laborers Pension Trust for Southern California, 508 U.S. 602, 622 (1993). In other words, preponderance of the evidence is evidence that is more convincing than the evidence offered in opposition to it. Greenwich Collieries v. Director, Office of Workers' Compensation Programs, 990 F. 2d 730, 736 (3rd. Cir. 1993), aff'd, 512 U.S. 246 (1994).

The decision in this case rests on a determination of the three-pronged test set forth by the United States Supreme Court, 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 U.S. 7 (1993).

Under the second prong of the Burlington/Carter test, the parents bear the burden of proving the appropriateness of the unilateral placement. See 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 unilateral placement 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).

Regarding the placement of students with disabilities, N.Y. Comp. Codes R. & Regs. 8 § 200.6(a)(3) states: "Students with disabilities placed together for purposes of special education shall be grouped by similarity of individual needs as defined in section 200.1(ww) of this Part, in accordance with the following: (i) The range of academic or educational achievement of such students shall be limited to assure that instruction provides each student appropriate opportunities to achieve his or her annual goals. The learning characteristics of students in the group shall be sufficiently similar to assure that this range of academic or educational achievement is at least maintained. (ii) The social development of each student shall be considered prior to placement in any instructional group to assure that the social interaction within the group is beneficial to each student, contributes to each student's social growth and maturity, and does not consistently interfere with the instruction being provided. The social needs of a student shall not be the sole determinant of such placement. (iii) The levels of physical development of such students may vary, provided that each student is provided appropriate opportunities to benefit from such instruction. Physical needs shall be considered prior to determining placement to assure access to appropriate programs. The physical needs of the student shall not be the sole basis for determining placement.

(iv) The management needs of such students may vary, provided that environmental modifications, adaptations, or, human or material resources required to meet the needs of any one student in the group are provided and do not consistently detract from the opportunities of other students in the group to benefit from instruction."

Regarding least restrictive environment, N.Y. Comp. Codes R. & Regs. tit. 8 § 200.1(cc) states that "Least restrictive environment means that placement of students with disabilities in special classes, separate schools or other removal from the regular educational environment occurs only when the nature or severity of the disability is such that even with the use of supplementary aids and services, education cannot be satisfactorily achieved. The placement of an individual student with a disability in the least restrictive environment shall: (1) provide the special education needed by the student; (2) provide for education of the student to the maximum extent appropriate to the needs of the student with other students who do not have disabilities; and (3) be as close as possible to the student's home."

FINDINGS OF FACT

For the School Year, the Student was in the [REDACTED] grade. The Student struggles with learning disabilities. The Student is described as friendly and outgoing yet easily upset and prone to losing focus. (Ex. G, L, M))

The disability classification on the Student's IEP is learning disability. (T 93, Ex. L-1) The Student's IEP was not submitted into evidence.

The Student is behind academically. The Student's [REDACTED] is at a [REDACTED] grade level. In terms of reading, her decoding ability is at grade level and her reading comprehension is at a [REDACTED] grade level. (Ex. G)

In August and October 2019, a Neuropsychological Evaluation was conducted by a licensed psychologist. (Ex. E)

The Neuropsychological Evaluation states: "[The Student's] achievement is impacted by her cognitive deficits in spatial/perceptual organization as well as deficits in executive functioning. She has a severe Specific Learning Disability in [REDACTED]. At this point in time, given the demands of high school academic achievement and the pace of the work, [the Student] requires placement in a small, self contained special education class for all subjects in a special education school with a high teacher to student ratio. She needs to be placed with peers who have similar deficits and teachers who are specially trained to teach children with learning disabilities. She could use an accommodation plan for [REDACTED] midterms, final exams, college entrance exams and other standardized testing." (E-7, 8) On August 24, 2020, the Parents sent a notice to the District. (Ex. C)

On September 9, 2020, the Parents entered into an Enrollment/Tuition contract with the Unilateral Placement. (Ex. I)

On April 9, 2021, the Parents sent a subsequent notice to the District. (Ex. D)

The total cost for the Student's tuition and related services at the Unilateral Placement for the School Year was $49,695, of which $30,000 has been paid by the Parent, resulting in a balance of $19,695. (Ex. J, L-4)

WITNESS TESTIMONY

The Parents presented the testimony by affidavit of the Student's Mother and the Unilateral Placement Principal. (Ex. L, M)

The Unilateral Placement Principal testified primarily regarding the appropriateness of Student's program at the Unilateral Placement for the School Year. The Unilateral Placement Principal testified that there are 35 students at the Unilateral Placement. (Ex. M) The Student was placed in a small special education class of seven students with similar needs, and the Student received 1:1 support. (Id) The Student received counseling once per week for 30 minutes. (Id)

During the School Year, the Student made progress in reading, writing and math. (Id)

The Student's Mother testified that she participated in the Student's IEP meeting and expressed her concerns disagreement with the District's recommended program in a general education setting. (Ex. L-2) The Student's Mother also testified regarding the Student's educational history as well as the appropriateness of the Unilateral Placement for the Student.

DECISION

For cases seeking payment for tuition at a Unilateral Placement, the first prong of the Burlington/Carter analysis is whether the District has met its burden of proof regarding whether the Student was provided a FAPE for the School Year.

Based on a preponderance of the evidence standard, I find that the Student was not provided a FAPE for the School Year, as the District did not present a case in this regard. By comparison, the Parent presented credible evidence regarding the Student's special education needs and the District's failure to provide an appropriate program.

With respect to the second prong of the Burlington/Carter analysis, the issue for adjudication at the hearing was whether the Unilateral Placement was appropriate. Under the Burlington/Carter analysis, the Parent bears the burden of proof in this regard.

The Parents presented credible evidence and testimony regarding the appropriateness of the Unilateral Placement. By comparison, the District did not seek to establish that the Unilateral Placement was not appropriate.

I credit the evidence and witness testimony regarding the appropriateness of the Student's program at the Unilateral Placement, which is generally consistent with the recommendations set forth in the Neuropsychological Evaluation. The witness testimony indicates that the Student has made progress and/or benefited from the Unilateral Placement.

In concluding the second prong of the Burlington/Carter analysis, based on a preponderance of the evidence standard, I find that the Parent has met its burden of proof regarding the appropriateness of the Unilateral Placement.

The third prong of the Burlington/Carter analysis considers the equities of the case. The Student's Mother testified that she participated in the Student's IEP meeting and expressed her concerns disagreement with the District's recommended program in a general education setting. In addition, the Parents provided a timely Ten Day Notice to the District for the School Year, as well as a subsequent notice. The District did not contest the equities of the case at the hearing.

In concluding the Burlington/Carter analysis, I find that the Student was not provided a FAPE for the School Year, that the Unilateral Placement was appropriate, and that the equities of the case also support payment for the Student's tuition at the Unilateral Placement for the School Year.

ORDER

Based upon the foregoing, it is hereby:

1) ORDERED THAT, the Student was not provided a FAPE for the School Year; and

2) ORDERED THAT, the District shall reimburse the Parents for tuition paid to the Unilateral Placement;

3) ORDERED THAT, the District shall make direct payment to the Unilateral Placement for the balance of the Student's tuition at the Unilateral Placement for the School Year.

SO ORDERED

DATED: April 11, 2023

/s/ Sebastian A. Weiss, Esq.

Sebastian A. Weiss, 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 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. PARENT EVIDENCE: Letter Date Name of Document # of Pages

A 10/31/2022 Amended Due Process Complaint 5

B 4/9/2021 Due Process Complaint 4

C 8/24/2020 Ten-Day Notice Letter 2

D 4/9/2021 Follow-up Notice Letter 2

E 10/18/2019 Neuropsychological Evaluation 11

F Undated 2020-2021 Class Schedule 1

G Undated 2020-2021 Progress Report 2

H 6/25/2021 2020-2021 Attendance 1

I 9/9/2020 Unilateral Placement Contract 5

J 6/15/2021 Payment Affidavit 1

K 4/23/2021 Parent 2020 Tax Form 1040 2

L 2/2/2023 Mother Testimony Affidavit 5

M 2/2/2023 Unilateral Placement Principal Testimony Affidavit 10

DISTRICT EVIDENCE: NONE.

Footnotes

[1] Exhibits, or "Ex.", shall be referred to as follows: "P" for Parent Exhibits, which are otherwise indicated alphabetically; "D" for District Exhibits, which are otherwise indicated numerically; "JE" for Joint Exhibits; "CB" for closing brief; "IHO" for any Impartial Hearing Officer's exhibits; and "T" for the hearing transcript, accompanied by the applicable hearing date.