NY IHO #209827: New York City... | Special Education Law

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NAMES AND TITLES OF PERSONS WHO APPEARED

JANUARY 18, 2022

For the Student:

REDACTED, Esq. Parent Attorney

For the Department of Education:

REDACTED DOE District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

FEBRUARY 18, 2022

For the Student:

REDACTED, Esq. Parent Attorney

For the Department of Education:

REDACTED DOE District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

MARCH 18, 2022

For the Student:

REDACTED, Esq. Parent Attorney

For the Department of Education:

REDACTED DOE District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

APRIL 29, 2022

For the Student:

REDACTED, Esq. Parent Attorney

For the Department of Education:

REDACTED DOE District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

MAY 24, 2022

For the Student:

REDACTED, Esq. Parent Attorney

For the Department of Education:

REDACTED DOE District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

JUNE 28, 2022

For the Student:

REDACTED, Esq. Parent Attorney

For the Department of Education:

REDACTED DOE District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

JULY 26, 2022

For the Student:

REDACTED, Esq. Parent Attorney

For the Department of Education:

REDACTED DOE District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

AUGUST 29, 2022

For the Student:

REDACTED, Esq. Parent Attorney

For the Department of Education:

REDACTED DOE Consultant Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

SEPTEMBER 30, 2022

For the Student:

REDACTED, Esq. Parent Attorney

For the Department of Education:

REDACTED DOE Consultant Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

OCTOBER 24, 2022

For the Student:

REDACTED, Esq. Parent Attorney

For the Department of Education:

REDACTED DOE Consultant Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

DECEMBER 6, 2022

For the Student:

REDACTED Parent Attorney

For the Department of Education:

REDACTED DOE Consultant Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

DECEMBER 12, 2022

For the Student:

REDACTED, Esq. Parent Attorney

For the Department of Education:

REDACTED DOE Consultant Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

JANUARY 18, 2023

For the Student:

REDACTED, Esq. Parent Attorney

REDACTED Classroom Teacher

REDACTED Parent/Mother

For the Department of Education:

REDACTED DOE Consultant Representative

INTRODUCTION

On December 17, 2021, New York City Department of Education (DOE) appointed me to act as the impartial hearing officer (IHO) in a case brought under the Federal Individuals with Disabilities Education Act (IDEA) [20 USC §1415(f)(3)] ("IDEA") by the parent (Parent) of REDACTED (REDACTED) for the school year 2020/21. The Parent requested the hearing by filing an impartial hearing request with the DOE on or about July 1, 2021. The DPC is carried under New York City ("NYC") Case No: 209827. The impartial hearing was held over a series of dates to complete the record on January 18, 2023. The timelines have also been extended to allow the parties opportunity to fully prepare, secure witnesses and obtain transcripts. The record officially closed on February 10, 2023. A list of persons who appeared at the hearing and the documents entered into evidence is annexed hereto.

BACKGROUND AND POSITIONS OF THE PARTIES

REDACTED is student known to the DOE as a student with a disability, classified "Speech or Language Impairment" (Exhibit A). The Parent alleges for the 2020/21 school year, the DOE failed to offer REDACTED a free appropriate public education (FAPE), both on procedural and substantiative grounds. The Parents present a series of allegations to support their claim that the proposed IEP was inappropriate and insufficient to offer REDACTED a FAPE, including but not limited to (1). the CSE was invalidly composed and failed to comply with the proper procedures in convening the meeting; (2). the CSE failed to consider and review the appropriate documentation and evaluative data prior to making its recommendation so that the IEP fails to appropriately describe REDACTED and his level of need; (3). the IEP fails to include sufficient goals and the goals as indicated could not be met in the DOE proposed program; (4). no meeting was held to create a program for the remainder of the 2020/21 school year upon the expiration of the November 6, 2019 IEP. The November 6, 2019 IEP recommended a general education class with SETSS and related services in a community school (Exhibit A). The Parent alleges the information included within that IEP fails to support the program recommendation as REDACTED requires a small nurturing classroom setting in a small full-time special education school where he can receive individualized and small group instruction to address his learning and attentional needs (Exhibit A). Further, upon the Parent receiving a school location letter placing REDACTED in a general education classroom at REDACTED they went to visit the proposed placement and determined it inappropriate. Thereafter at the start of the 2020/21 school year, Parent attempted to contact the school to determine if it could offer an appropriate program for REDACTED but her attempts went by unanswered. Consequently, the Parents gave notice of their concerns to the DOE of its failure to provide REDACTED with an appropriate program and placement and gave notice of their intent to unilaterally REDACTED (REDACTED) and seek reimbursement from the DOE for the cost of this program for the 2020/21 school year (Exhibits B and C). As a remedy for the DOE's failure to provide REDACTED a FAPE, the Parent filed a DPC and now seeks for the DOE to reimburse/fund the tuition, costs, and expenses of REDACTED's program REDACTED.

In an effort to support their position, the parents submitted a documentary exhibit package consisting of nineteen pieces of evidence (Exhibits A-S), which included the testimony of two witnesses: REDACTED, Classroom Teacher (Exhibit S) and REDACTED, parent (Exhibit R).

At both the hearing dates scheduled for December 12, 2022 and January 18, 2023, the DOE failed to appear and was defaulted (T @ 57, 63).

FINDINGS OF FACT AND DECISION

The Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) was enacted with the primary purpose to ensure that students with disabilities have available to them a free and appropriate public education (FAPE) (20 U.S.C. § 1400[d][1][A]; see Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]; Bd. of Educ. v. Rowley, 458 S. Ct. 176, 179-81, 200-01 [1982]; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [2d Cir. 2006]). It is clear that the legislative intent of 20 US Code Section 1412 of the IDEA is to provide a FAPE to all children with disabilities so that these individuals may ultimately lead productive independent lives as adults, to the maximum extent possible (20 U.S.C. Sx 1400[d][1][A]; see Mrs. W v. Tirozzi, 832 F.2d 748 [2nd Cir. 1987]. A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (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). An IEP is designed as a "written statement" that addresses the educational needs of a child with a disability (20 U.S.C. § 1401[14]; 34 C.F.R. § 300.22; 8 NYCRR 200.1[y]). At the beginning of each school year, a school district is required to have an IEP in effect "for each child with a disability in its jurisdiction" (20 U.S.C. § 1414[d][2]; 34 C.F.R. § 300.323[a]; see also Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 194 [2d Cir. 2005] (finding the district fulfilled its legal obligations by providing the IEP before the first day of school). The student's recommended program must also be provided in the least restrictive environment (LRE) (34 C.F.R. § 300.114[a]; 8 NYCRR 200.6[A][1]). A FAPE is offered to a student when the board of education (a) complied with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. at 176, 206, 207 [1982]). The IDEA directs that, in general, a decision by an impartial hearing officer or state review officer must be made on substantive grounds based on a determination of whether or not the child received a FAPE (20 U.S.C. § 1415[f][3][E][i]). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a FAPE to the child, or (c) caused a deprivation of educational benefits to the child (20 U.S.C. § 1415[f][3][E][ii]; see 8 NYCRR 2005[j][4][ii]). The IDEA mandates that a student with a disability be provided with a FAPE tailored to meet his unique needs and one that is "reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances." Endrew F. v. Douglas Cty. Sch. Dist., 580 U.S. ___, 137 S.Ct.988, 999 (2017). A focus on the particular child is at the core of the IDEA. Endrew F., 137 S.Ct. at 999. Under 20 U.S.C. Section 1414(d)(3)(A), the IDEA mandates an IEP team to consider a child's strengths, weaknesses and deficiencies, as well as the results of the most recent evaluations of the child together with developmental and functional needs of the child. In order to determine the student's requirements and needs, the team must review and consider evaluations, assessment and information provided by the child's parents, teachers and service providers and thereon determine the type of program required for the child. A board of education may be required to pay for educational services obtained for a child by the child's parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim. (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; see also Frank R. and Dianne R. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 [2d Cir. 2006], cert denied, Board of Educ. of Hyde Park Cent. School Dist. v. Frank R., 2007 WL 2982269 [Oct. 15, 2007].

The case at hand is a tuition reimbursement case and is therefore governed by the holding of the U.S. Supreme Court in Burlington School Comm. v. Dept of Education (471 U.S. 359 [1985]). That case set forth a three-prong test for determining if tuition reimbursement is warranted: (1) were the services offered by the school district inadequate or inappropriate; (2) where the services selected by the parents appropriate; and (3) do equitable considerations support the parents' claim. Recently enacted state legislation puts the burden of proof for the first prong on the school district and for the second prong on the parent (Chap. 583 of Laws of 2007).

Prong I:

An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the child's needs, establishes annual goals and short-term instructional objectives which are related to the child's educational deficits, and provides for the use of appropriate special education services to address the child's special education needs. Application of a Child with a Disability, Appeal No 93-12; Application of a Child with a Disability, Appeal No 93-9; Application of a Child with a Handicapping Condition, Appeal No 92-7; Matter of Handicapped Child, 22 Ed Dept Rep 487, March 11, 1983. The SRO has found that allegations that are left unchallenged are deemed as true "unless found to be inconsistent with the evidence in the record." Application of a Student with a Disability, 01-044 (SRO March 27, 2002). The DOE's silence at hearing has the effect of conceding every point alleged by the parent against the DOE unless it is inconsistent with the hearing record. Id.

Herein, the DOE defaulted and failed to meet its burden of proof thus Parents have met the first of the three Burlington/Carter criteria for tuition reimbursement. Prong II:

Having determined that the DOE did not offer the student a FAPE for the 2020/21 school year, I now proceed to evaluating the appropriateness of the parents' unilateral placement of the student at REDACTED, presented by Parent as a full-time special education school that provides academic instruction and supports for students with learning disabilities (T @ 67).

The parent's failure to select a program approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Florence County Sch Dist Four v. Carter 510 U.S. 7 [1993]). The private placement need not employ certified special education teachers, Carter, supra. The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of the unilateral placement: "No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents 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, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).

Herein, I credit the uncontroverted testimony (Exhibits R and S) submitted herein and find it establishes that the placement at REDACTED was appropriate as it provided a program and services that were directly related to REDACTED's needs and one in which he was able to make meaningful progress. I find the evidence to substantiate the program at REDACTED to offer a small supportive environment with intensive 1:1 and small group instruction, modifications and supports required by REDACTED to make progress (Exhibits E-F, J-K). Moreso, REDACTED received related services, to include speech language therapy, occupational therapy and counseling designed to address his needs (Exhibits G-I).

Based upon the foregoing, I therefore find that REDACTED was an appropriate placement for REDACTED for the 2020/21 school year. The record reflects REDACTED provided a rich supportive environment that correlated well with REDACTED, that the curriculum was specifically tailored to meet REDACTED's needs and that he received a highly individualized instruction that enabled him to make appropriate progress. Based upon the foregoing, I find that the student made meaningful progress at REDACTED for the 2020/21 school year across the board: academically, socially and emotionally. The record reflects that REDACTED was a placement that was "specifically designed to meet the unique needs" of the student Frank G, supra and that REDACTED has made progress therein.

Prong III:

Having found REDACTED an appropriate placement, I now consider equitable considerations, the final criterion for a reimbursement award. In weighing the equities, "the critical consideration, as the Court sees it, is whether they have cooperated in good faith to attempt to develop an IEP to the maximum extent possible, Schaffer, supra. There is nothing in the record to show that the parents were anything other than cooperative. The DOE did not present any evidence or testimony regarding the equity considerations for the 2020/21 school year. All indications are that the Parent cooperated with the DOE and did not interfere in any way with the DOE's obligation to provide a FAPE for the Student for the 2020/21 school year. REDACTED's Parents timely put the DOE on notice of REDACTED's unilateral placement and their intent to seek reimbursement (Exhibits B and C).

This case involves a situation where the Parent's financial circumstances limit their ability to make payment to REDACTED (Exhibits O and P). Established case law warrants a finding that under such circumstances a school district must pay the monies owed, assuming parent's claim is meritorious with regard to the three Burlington factors. In Conners v. Mills, 34 F. Supp. 2d 795 (N.D.N.Y.) at 805, the court reasoned: "By prohibiting prospective placement, Defendants would deny assistance to families that are not able to front the cost of a private, non-approved school, without exception…Given the fragile state of many disabled children, and their dire need for constant and consistent care, even brief periods of inappropriate schooling could lead to tremendous educational, social, emotional and psychological deterioration. Families of greater economic means would not be faced with such a grim prospect. It simply cannot be the case that an act designed to grant "all" disabled children access to needed services could undermine that very goal by making such access dependent upon a family's financial situation."

The record reflects a portion of the school day (26%) at REDACTED is devoted to prayer and religious studies (Exhibit S). I do not find that the DOE is to be responsible to fund same but that parents have every right to do so.

I find (1). that the DOE failed to offer the student a FAPE for the 2020/21 school year, (2). that the unilateral placement of the student at REDACTED was appropriate (3). that the program at REDACTED was "reasonably calculated" to provide REDACTED with meaningful educational benefits and (4). that equitable considerations weighed in favor of the parents' request for reimbursement for all costs associated with the placement of the student at REDACTED for the 2020/21 school year.

Based upon the foregoing,

ORDER

It is hereby ordered that within thirty (30) days of receipt of this Order, the Department of Education shall directly fund/reimburse the cost of the student's secular tuition and related services at REDACTED for the 2020/21 school year in the amount of $48,043.00 (35,443.00 secular tuition + $12,600 for related services). All payments shall be supported by the presentation of appropriate documentation.

Dated: February 18, 2023

Maria R. Dispenza

MARIA R. DISPENZA, ESQ.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

PLEASE TAKE NOTICE

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.

DOCUMENTATION ENTERED INTO THE RECORD ON JANUARY 18, 2023

A. Parent: Due Process Complaint, 07/01/21 - 6pp

B. Ten-Day Notice Letter, 08/24/20 - 5pp

C. Follow-up Notice Letter, 11/16/20 - 2pp D. REDACTED 2020/21 Goals Undated - 6pp

New York City Department of Education, Impartial Hearing Decision