New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 553189 NYC: 209293

FINDINGS OF FACT AND DECISION

NAMES AND TITLES OF PERSONS WHO APPEARED

OCTOBER 15, 2021 *

For the Student:

"REDACTED", Attorney

For the Department of Education:

NONE

NAMES AND TITLES OF PERSONS WHO APPEARED

NOVEMBER 15, 2021 *

For the Student:

"REDACTED", ESQ., Attorney

"REDACTED", Parent Student

"REDACTED", Academic Director

For the Department of Education:

"REDACTED", ED.M., District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

NOVEMBER 18, 2021 *

For the Student:

"REDACTED", ESQ., Attorney

"REDACTED", Parent Student

"REDACTED", ED.M, Academic Director

For the Department of Education:

"REDACTED", ED.M., District Representative

* 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 an REDACTED-year-old student whose parent "REDACTED "brought the instant hearing, arguing that the DOE had failed to provide her daughter with a free appropriate public education (FAPE) for the 2021/2022 school year.

The hearing convened on October 15, 2021, however, no one appeared for the District and the case was adjourned to November 15, 2021. On November 15, 2021, in order to give the District more time to prepare, the case was adjourned to November 18, 2021 at which time a full hearing was conducted. Extensions were granted in accordance with regulations and the record will close on March 19, 2022.

DISTRICT AND PARENT POSITIONS

The due process complaint notice (DPCN) dated June 30, 2021 included multiple claims that the DOE had failed to provide the student with a substantive and procedural FAPE for the 2021-2022 school year, that the placement at the "REDACTED "and/or "REDACTED" is an appropriate residential placement for the 2021-2022 school year, and that the parent is entitled to tuition reimbursement. (Parent's exhibit A).

The District did not offer any evidence to the contrary.

FINDINGS OF FACT

A Psychiatric evaluation conducted by "REDACTED", report dated October 26, 2019, described the student as being emotionally disturbed and recommended that she be placed at a twelve-month, highly structured and supervised therapeutic residential program. She needed 24-hour supervision because of her condition. If not placed in such an environment, she would be very likely to continue to regress socially, academically, emotionally, and behaviorally. Also, she would continue to deteriorate and would be at risk of recurrent episodes of her Major Depressive Disorder among other things. Lastly, he stated that if she were placed in the adequate education setting, there is a high possibility that she would make significant positive changes and academic progress commensurate with her abilities. (Parent's Exhibit D).

A Psychological Evaluation by "REDACTED", report dated December 6, 2019, concluded that the student met the disability classification for Emotional Disturbance and was deteriorating in her school functioning due to REDACTED. He stated that the student needed a setting that can accommodate both her learning and social/emotional needs, with clinical staffing present on site to mitigate psychiatric emergencies. Finally, he concluded that the student needed medication, and therapy to address her condition. (Parent's Exhibit E).

According to an Individualized Academic Plan (IAP), (Parent's Exhibit G) generated by "REDACTED", there was no Individualized Education Plan (IEP). The plan listed the diagnosis of the student as having an Unspecified Bipolar Disorder, Specific Learning Disorder with Impairment in Mathematics, and an Attention-Deficit/Hyperactivity Disorder. Recommendations were for a structured teacher lead study hall 60 minutes per week for 52 weeks, a Study Skills class for 150 minutes per week for 53 weeks, and individualized counseling 2 times per week for 53 weeks, among other accommodations.

The parent's attorney presented an Admission Agreement (Parent's Exhibit F) which was executed by the parent, laying out the costs of tuition. An Attendance Report (Parent's Exhibit H), and Academic Report Cards (Parent's Exhibit K) were also admitted outlaying the student's progress. Lastly, a tuition affidavit (Parent's Exhibit I) was presented showing the payments already made by the parent, and the amount that was due as of November 13, 2021.

By affidavit, the Academic Director of the "REDACTED", "REDACTED", M.Ed. enumerated her personal training and experience and the qualifications of the school. It concluded that based on her personal experience with the student, in her opinion to a reasonable degree of professional certainty, the therapeutic and academic programming has been and continues to be appropriate to meet the student's special educational individualized needs in the least restrictive environment. (Parent's Exhibit L).

During the hearing dated November 18, 2021, the parent offered testimony stating that she paid the tuition for the 2020/21 academic year and was reimbursed by the New York City Department of Education. She decided to have her child continue at the same school. The Department of Education did not offer an alternative residential treatment facility. The total cost of attending the school was $111,015.00. She testified that she paid $69, 472.52 to the school and that she intended to pay the balance. She also stated that she believed that the placement at that school was appropriate to meet the needs of her child.

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

The initial inquiry in a matter is whether the student's IEP and/or placement is/are "proper" or "appropriate." Id. However, this initial inquiry may go beyond the appropriateness of the IEP and/or placement. See 20 U.S.C. §1412(a)(10)(C)(ii); 34 C.F.R. § §300.14(a) and 300.248(c). 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 representative offered no testimony or evidence disputing the parent's claims. As such, I find the district failed to provide a FAPE for the child. 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 the child. 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. To meet that burden, the parents must show that the REDACTED Academy 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 parent has sustained her burden of demonstrating the appropriateness of the program at "REDACTED". Considering the reports offered by the medical professionals that evaluated the student, the IAP, and the parent's testimony I credit the description of the program offered to the student at "REDACTED "by the Director "REDACTED". Taking into consideration these and other factors, I find that the parents have demonstrated the appropriateness of the program at that school 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 form the district based on equities, nor any evidence to suggest an issue. Under the circumstances, analysis of equities would not prevent an award for the student's tuition at "REDACTED". Tuition Reimbursement.

The Individuals with Disabilities Education Act (IDEA) empowers a hearing officer to grant relief that the hearing officer determines to be appropriate. §34 C.F.R. 300.516(c)(3). One such remedy is reimbursement of tuition and related expenses. Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 20 IDELR 532 (1993), School Committee of the Town of Burlington v. Dept. of Educ., Massachusetts, 471 U.S. 359 (1985). In Burlington, the Court found that Congress intended retroactive reimbursement to parents as an available remedy. "Reimbursement merely requires a [Local Educational Agency (LEA)] to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper [IEP]. See Carter. The mere fact that the state educational agency and/or the LEA has not approved the private school placement does not bar the parents from reimbursement. Id.

In this case, there was no IEP, but an IAP provided by the REDACTED Academy. Also, tuition reimbursement was awarded for the previous school year. Further, there was no demonstration by the district that the placement was inappropriate.

ORDER

The DOE shall reimburse Ivonne Perry, the parent for the funds already paid by her and shall forward payment the "REDACTED "and/or "REDACTED "for the 2021-2022 school year for the remaining balance at a cost not to exceed $111,000.00, upon submission of proof of attendance.

IT IS SO ORDERED.

Dated: March 16, 2022

_Annette Hicks Gill_______

ANNETTE HICKS GILL, IHO

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. Due Process Complaint, 06/30/21, 4 pages

B. Ten Day Notice, 06/18/30, 2 pages

C. "REDACTED" Program Description, UNDATED, 5 pages

D. Psychiatric Evaluation by "REDACTED", M.D., 10/26/19, 11 pages

E. Psychological Evaluation by "REDACTED", PH.D., 12/06/19, 9 pages

F. "REDACTED" Admission Agreement, 01/23/20, 11 pages

G. "REDACTED" Individualized Academic Plan, 10/19/21 11 pages

H. "REDACTED" Attendance Report, 10/19/21, 1 page

I. "REDACTED" Tuition Affidavit for 2021- 2022 School Year, 11/15/21, 1 page

J. "REDACTED" Class Schedule, 2021-2022, 1 page

K. "REDACTED" Report Cards, 2020-2021/2021-2022, 2 pages

L. Affidavit of "REDACTED", M.Ed., 11/11/21, 7 pages