New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 552326 - NYC: 208512

FINDINGS OF FACT AND DECISION

Case Number: 208512

Student’s Name: REDACTED

Date of Birth: REDACTED

District: REDACTED

Hearing Requested By: Parent

Date of Hearing: December 6, 2021

January 10, 2022

January 11, 2022

February 7, 2022

Actual Record Closed Date: April 12, 2022

Hearing Officer: Judith Schneider, Esq.

On December 6, 2021, January 10, 2022, January 11, 2022, and February 7, 2022, I conducted (remotely via videoconference) an Impartial Hearing for the New York City Department of Education (“DOE” or “the district”) Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York, pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C. §1415, and Article 89 of the Education Law of the State of New York, regarding the special education program of XXX (“the student”).

Procedural History

The proceeding was initiated at the request of the parents (hereinafter “the parent”) by correspondence dated May 27, 2021, concerning the 2020-2021 school year ( ). (Ex. A) I was appointed Impartial Hearing Officer on October 14. 2021.

By correspondence dated June 30, 2021 the parents filed a due process complaint concerning the 2021-2022 SY (Case No. 209194). I was appointed Impartial Hearing Officer on October 14. 2021.

Prehearing conferences were conducted on October 28, 2021.

By order issued October 28, 2021, the cases were consolidated under Case No. 208512.

A status conference was conducted on December 6, 2021. The hearing was held on December 6, 2021, January 10, 2022, January 11, 2022, and February 7, 2022. A hearing scheduled for January 20, 20922 was not put on the calendar.

Parties moved to extend the compliance date on various occasions in light of settlement discussions, anticipated testimony, the scheduling of witnesses and submission of evidence, receipt of the transcript, submission of closing memoranda and issuance of the decision. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of this matter. Accordingly, the requests for extensions of the compliance dates were granted.

The current compliance date is April 26, 2022. The record closed on April 12, 2022, upon my receipt of hard copies of the record.

Positions of the Parties The parent asserts the district failed to timely identify the student for evaluation for special education services, failed to conduct an evaluation, failed to convene the CSE to develop an IEP and therefore failed to provide a FAPE for the 2020-2021 and 2021-2022 SYs. The parent unilaterally enrolled the student in REDACTED (“the wilderness program”), located in REDACTED, for part of the 2020-2021 SY and thereafter enrolled the student in the REDACTED, a residential treatment center in REDACTED (“the RTC”), for part of the 2020-2021 SY and for the 2021-2022 SY. ^[1] The parent seeks reimbursement by the district for tuition for those placements. Further, the parent seeks reimbursement for travel expenses in connection with those placements as well as reimbursement for an independent neuropsychological evaluation (“IEE”) obtained by the parent. (Exs. A, I)

The district asserted that it was not presenting a case with regard to whether it provided a FAPE for the school years at issue, was not asserting a position with regard to the appropriateness of the unilateral placements provided or as to whether equitable factors supported the DOE. (T80, 83, 87) Further, it stated it was not asserting a position with regard to the parent’s claim for reimbursement for the IEE. (T84-85) The district did not state an objection to the travel reimbursement sought. No questions with regard to any issue in this matter were posed by the district which was mute throughout the proceeding. (T111, 124, 160, 186, 236, 245) The district did not submit a closing statement although an opportunity to do so was provided. In effect the DOE defaulted.

Cases Presented The district presented no evidence, testimonial or documentary. The parent submitted documents which were admitted into the record (a list is appended) and presented the testimony of: the neuropsychologist who conducted the IEE; the wilderness program’s admissions director; the RTC’s academic director; the student’s mother; and the student’s father.

Findings of Fact and Conclusions of Law

A) Background

Uncontested evidence in this matter shows that:

The student, now 16, is diagnosed with: post-traumatic stress disorder, other specified eating disorder; major depressive disorder, recurrent severe; generalized anxiety disorder; cannabis use disorder, severe; and other specified personality disorder. (Ex. I, T148-150) Her cognitive scores are generally in the very high ranges but for areas of deficit which are in the average range. (Ex. I)

The student was attending a district school and issues of elopement from school and classes, inattention in classes and refusal to do homework, among other things, were known to school officials and assistance from school officials was sought by the parent but not provided. Ultimately the student made two suicide attempts and overdosed, was hospitalized, and was placed in a short term residential therapeutic facility in a nearby state. School officials were timely informed of the student’s difficulties and placement and the reason for her absence from school. At no time did district school officials inform the parent as to the possibility of district evaluation and special education services. (Ex. GG)

The IEE, initially scheduled for November 2020, was delayed due to COVID issues and the report was issued in January. (Ex. I) The fee for the evaluation was $7500 and family insurance paid the bulk of that fee. (Ex. W, GG) The evaluator, as well as the short term residential treatment center in which the student in which the student had been placed during part of the 2020-2021 SY, concluded that the student required long-term treatment in a residential facility. (Exs. I, GG, T37-38, 51) The parent secured the services of an educational consultant in January 2021 and learned from her that the student might be entitled to an IEP. (Ex. GG, T292)

The student was placed in the wilderness program to prepare her for a long-term residential placement and attended from January 25, 2021-May 18, 2021. (Ex. GG, Ex. K, T98) Required tuition for the wilderness program was a $3500 registration fee and a $615 per day charge. (Ex. J, T100, 119)

On February 26, 2021 a 10-day notice regarding the student’s placement in the wilderness program was sent to the DOE but no response was received. (Ex. C, T294, 317) The IEE was submitted to the DOE. (Ex. HH)

The student was thereafter enrolled in the RTC commencing May 20, 2021, the beginning of its summer session. (Ex. N) Payment commencing then until removal was required and a discharge date was not specified. The student continued to attend the RTC through the hearing dates. Tuition at the RTC, adjusted for an “Underinsured financial courtesy” and a cash discount was $445 per day, to increase by $10 per day effective November 1, 2021 and there was an enrollment fee of $2500. (Ex. N, T286-287)

Ten-day notices regarding the student’s attendance at the RTC were sent to the DOE on May 3, 2021 and June 15, 2021. (Exs. E-H)

The parent signed, at district request, a consent for a social history. (Exs. GG, HH) The parent several times informed the CSE that a determination of eligibility for an IEP was requested and that consent for all evaluations desired by the CSE was granted. (Exs, C, E-H, HH, GG)

The district did not conduct any evaluation and did not provide an IEP for the 2020-2021 or 2021-2022 SYs. (Ex. GG)

B. Conclusions The legal standard applicable to a request for reimbursement for educational services is well established. Reimbursement is granted if: (1) the services offered by the Board of Education are inadequate or inappropriate (Prong 1); (2) the services selected by the parent are appropriate (Prong 2); and (3) equitable considerations support the parent's claim (Prong 3). Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Department of Educ. of Mass., 471 U.S. 359 (1985). In New York State the DOE bears the burden of proof with regard to Prong 1 and Prong 3 and the parent bears the burden of proof with regard to Prong 2. Educ. Law 4404[1][c]

Prong 1 The district has presented no evidence and, indeed, has made no claim that it provided a FAPE for either of the school years at issue. Accordingly, I conclude that the DOE has not met its burden to establish that it provided a FAPE for the 2020-2021 and 2021-2022 SYs.

Prong 2

When a public school system has failed to provide FAPE, the program and services chosen by the parent are “proper under the Act” if the education provided is “reasonably calculated to enable the child to receive educational benefits.” Carter, 510 U.S. at 14. The parents bear the burden of proof with regard to the services obtained by the parents for the student. However, parents are not barred from reimbursement if their program does not meet the IDEA definition of a FAPE. See 20 U.S.C. §1401(9), Frank G. v. Bd. of Educ. of Hyde Park., 459 F. 3d 356 (2nd Cir. 2006). It is not required that the provider of the services be State-approved to provide instruction to children with disabilities. Carter, 510 U.S. at 10. The student need not be the least restrictive environment. Frank G, 459 F. 3d at 364.. “Ultimately the issue turns on whether a placement…is ‘reasonably calculated to enable the child to receive educational benefits.’ [internal citations omitted] …”, Frank G, 459 F. 3d at 130. No one factor is necessarily dispositive in determining that. Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982). Parents 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. Id. at 364-365. See also Gagliardo v. Arlington Cent. Sch. Dist., 489 F 3d. 105, 115 (2d Cir. 2007). However, the program should reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances. Endrew F. v. Douglas County School District, 580 U.S. ___ (2017), 2017 WL 1066260 (March 22, 2017). Although the restrictiveness of a parental placement may be considered as a factor in determining entitlement to an award of tuition reimbursement, parents are not as strictly held to the standard of placement in the LRE as are school districts. C.L. v. Scarsdale UFSD, 744 F. 3d 826, 830, 836-37 (2d Cir. 2014); see Carter, 510 U.S. at 14-15; M.S., 231 F.3d at 105 and “the totality of the circumstances” must be considered in determining the appropriateness of the unilateral placement, Frank G., 459 F. 3d at 64.

The evidence presented was persuasive and uncontested. The testimony of the witnesses, supported by documentary evidence established that each program provided an appropriate academic component, appropriate therapeutic support for this student, and appropriately qualified staff in settings with small group/class size and consistent with the recommendations of the IEE and, further, that the student progressed. (T93-121, 205-245, 251-280,, Exs. I, M, P-V)

I find that the parent’s burden to establish that the programs were reasonably calculated to enable the student make meaningful gains in view of her circumstances has been met.

Appropriate travel and/or visits for student and family members in connection with the placements is a required and appropriate element of the programs. (T276) I consider the parent’s reimbursement request for such expenses in my discussion of the equities.

Prong 3 The determination of whether equitable factors support a parent’s claim for tuition reimbursement hinges, in large part, on whether or not a parent cooperated with the DOE and CSE. See generally Burlington, 471 U.S. 359; Carter, 510 U.S. 7; see also Mr. & Mrs. A ex rel. D.A. v. N.Y.C. Dep’t of Edu., 769 F. Supp. 2d 403, 430 (S.D.N.Y. 2011); see also N.R. ex rel. T.R. v. Dep’t of Educ. of City Sch. Distr. Of N.Y., No. 07 Civ. 9648, 2009 WL 874061, at *14 (S.D.N.Y. Mar. 31, 2009). It is well established that a parent’s subjective intent, or preference for a nonpublic educational setting, is not relevant to a determination of the equities, even if, in seeking tuition funding, the parent has, as “[p]resumably, nearly all parents who make unilateral placement... and then seek tuition reimbursement, act[ed] at least in part out of a hope, belief, or expectation that the school district [would] ultimately be forced to fund [the] placement,” Mr. & Mrs. A. ex rel. D.A., 769 F. Supp. 2d at 430; see also N.R. ex rel. T.R. 2009 WL 874061, at *14. See also C.L. v. Scarsdale UFSD, 744 F. 3d 826 (2d Cir. 2014) (“[Parents] pursuit of a private placement was not a basis for denying their tuition reimbursement, even assuming…that the parents never intended to keep [the student] in public school.”)

In this matter there is no claim that equitable considerations support denial or limitation of district funding for tuition at the wilderness program and the RTC. Further, I conclude the evidence does not support that. Full reimbursement is ordered for the tuition.

However, with regard to the travel expenses charged, I note that it is well established that the remedy for a district’s failure to provide a FAPE must be reasonable. Carter. I conclude that appropriate travel reimbursement should be consistent with current applicable written regulations/payment limitations relating to reimbursement. Although there may be circumstances that warrant something additional none such is claimed here ^[2] Therefore reimbursement shall not exceed that which is permitted under applicable limits.

C. Reimbursement of the IEE

I find that the IEE was necessary to determine an appropriate program for the student after undisputed DOE inaction and that it was provided to the CSE. I note that under §§1412 and 1415 of the IDEA, a free appropriate public education is available to all children with disabilities residing in the State between the ages of 3 and 21, and courts and hearing officers have broad authority to grant such relief as they deem appropriate. 20 U.S.C. §§1412(a)(1), 1415(i)(2)(C)(iii); Forest Grove Sch. Dist. v. T.A, 129 S. Ct. 2484, 2492 (S. Ct. 2009); Frank G. v. Bd. of Educ., 459 F.3d 356, 371 (2d Cir. 2006); Appeal No. 08-052. Reimbursement for that portion of the IEE cost paid by the parent ($1915) is ordered. (Exs. GG, WW)

ORDER

Based upon the foregoing IT IS THEREFORE ORDERED that:

1. The district shall reimburse the parent for the student’s enrollment in the wilderness program from January 25, 2021-May 18, 2021 at the rate of $615 per day and shall reimburse the $3500 registration fee. The district may require evidence of parental payment and that the fees charged were the wilderness program’s usual and customary rate.

2. The district shall reimburse the parent for the student’s enrollment in the RTC during the 2020-2021 and 2020-2022 school years (through June 30, 2022) upon evidence of parental payment, student attendance and that the fees charged were the RTC’s usual and customary rate.

3. The district shall reimburse the parent for expenses occasioned by trips by the student and/or family members from New York City to and from the wilderness program and to and from the RTC in accordance with written regulations/payment limitations concerning permitted reimbursement in effect at the time the trips were made upon receipt of evidence as to the expenses claimed. If written regulations/payment limitations do not exist the district shall reimburse for all expenses claimed upon evidence of parent payment.

4. The district shall reimburse the parent in the amount $1915 for the IEE conducted The district may require evidence as to the evaluator’s credentials.

Dated: April 27, 2022

_________/s/_____________

JUDITH SCHNEIDER, ESQ.

Impartial Hearing Officer

PLEASE TAKE NOTICE

The parent and/or the New York City Department of Education has a right to obtain a review of this decision by a State Review Officer of the New York State Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act. The Department of Education has designated the New York City Law Department to accept service of papers on its behalf, including appeals of decisions of Impartial Hearing Officers.  Such service is made at 100 Church Street, New York, NY 10007 at the Messenger Center.

EXHIBITS

District

NONE

Parent

Letter Sequence

Evidence Description

Date

# of Pages

Demand For Due Process

A 2020-2021 Processed Demand for Due Process 05/27/21 11

B 2021-2022 Processed Demand for Due Process 06/30/21 11 10-Day Notice Letter

C 10-Day Notice Letter 2020-2021REDACTED 02/26/21 2 D Receipt of 10-Day Notice Letter 2020-2021 REDACTED 02/26/21 1 E 10 Day-Notice Letter 2020-2021 REDACTED 05/03/21 2 F Receipt of 10-Day Notice Letter 2020-2021 REDACTED 05/03/21 1 G 10 Day-Notice Letter 2021-2022 REDACTED 06/15/21 2 H Receipt of 10-Day Notice Letter 2021-2022 REDACTED 06/15/21 1 Reports & Evaluations

I REDACTED Psychological Report 01/02/21 52 2020-2021 REDACTED Documents

J New Vision Enrollment Contract 01/23/21 8

K New Vision Transcript 05/20/21 1

L REDACTED Teacher Progress Report 05/11/21 11 2020-2021, 2021-2022 REDACTED Academy Documents

M REDACTED Program Description Undated 1

N REDACTED Enrollment Contract 05/08/21 13

O REDACTED 2020-2021, 2021-2022 Tuition Affidavit 11/10/21 2

P REDACTED 2020-2021 Class Schedule Undated 1

Q REDACTED 2021-2022 Class Schedule 11/10/21 1

R REDACTED 2020-2021 Qtr. 5 Progress Report 11/09/21 2

S REDACTED 2021-2022 Qtr. 1 Progress Report 11/23/21 2

T REDACTED Master Treatment Plan 06/21/21 9

U REDACTED Master Treatment Plan 10/21/21 9

V REDACTED 2020-2021, 2021-2022 Attendance Report 11/23/21 1 Invoices and Payments

W Proof of Payments: REDACTED Psychological Evaluation 10/29/20 4

X Proof of Payments:REDACTED Tuition Various 11

Y Proof of Payments: REDACTED Travel Various 37

Z Proof of Payments: Solstice REDACTED Tuition Various 11

AA Proof of Payments: REDACTED Travel Various 107 Additional Documents

BB REDACTED Resume Undated 1

CC Subpoena Duces Tecum 11/05/21 2

DD Subpoena Duces Tecum Fax Confirmation 11/05/21 1

EE REDACTED Resume Undated 2

FF REDACTED 2021-2022 Qtr. 2 Progress Report 12/22/21 2

GG REDACTED Testimony Affidavit 01/04/22 11 HH Email re Neuropsychological Evaluation Various 2 Impartial Hearing Officer

I Parent’s Post Hearing Brief with Exhibit

Footnotes

[1] The RTC “school year” is not consistent with New York State terminology. Its summer term is from the end of May through July and its remaining school year is August-May. (T215, 221, 233) Refences to 2020-2021 and 2021-2022 SYs refer to the New York designations.

[2] The parent utilized an educational consultant presumably knowledgeable about travel reimbursement constraints and able to advise the parent regarding requirements and limitations.