Impartial Hearing Decision

This hearing concerns allegations raised by the family with respect to the district’s purported denial of a Free Appropriate Public Education (FAPE) to the student for the 2021-2022 school year. See Ex. A-3 – A-5. As was the case in a prior hearing for this student that I presided over, the family has asserted that the district failed to offer the student an appropriate placement for the school year at issue and, as a result, they were left with no choice but to engage in self-help by unilaterally placing the student in a program and placement that they deemed to be appropriate. They seek district responsibility for both the cost of that unilateral placement and private transportation costs, as well as a finding that the program they have opted for is appropriate, and a determination that, if finally ordered or if the district accepts the Order and does not appeal it, will function to place the student at the unilateral placement for the years in question.

The student in question is a REDACTED-year-old child who has been diagnosed with a severe brain injury, as well as ADHD, Retinopathy of Prematurity, Myopia, and Compound Myopic Astigmatism. See Ex. B-2, C-1. The student is minimally verbal, requires assistance for ambulation (including the use of a wheelchair), and has impairments with respect to cognition, vision, speech and language, daily living skills and both find and gross motor skills. See Exhs. C-1, C-8, C-24, 9-2, 10-3.

On or about March 24, 2021, the district’s committee on special education convened to develop the student’s IEP for the 2021-2022 school year. See Exhs. 1-1, 2-1. The CSE classified the child as a student with a traumatic brain injury and recommended that the student be placed in a specialized, self-contained 6:1+1 class in a district specialized school, receive the support of counseling, occupational therapy, physical therapy, speech language therapy and vision education services, as well as assistive technology and transportation assistance, all on a twelve-month basis. See Ex. 1-1, 1-32 – 1-33, 1-38, 3-2. Although the issue is contested, the district also asserts that it proffered a placement notice, offering the student a brick-and-mortar placement to implement the IEP for the 2021-2022 school year. See Ex. 4-1.

The district maintains that its recommended program and placement offered the student an appropriate specialized program for the school year and opposes the family’s request for relief.

I turn first to a general discussion of several relevant legal principles is warranted first.

• • The Burden of Proof – the Who, When, and How Much.

Defining what must be proved in a denial of FAPE case provides only a partial description to the procedures the law lays out; in addition to ‘what,’ there are important ‘who,’ ‘when,’ and ‘how much’ parameters as well; taken together, these constitute the ‘burden of proof.’

• • The ‘Who’ – The Burden of Persuasion Litigation is the process whereby an external decision-maker is asked to intervene in the status quo, either to force a change or to compel its uninterrupted continuation. The Burden of Persuasion answers the question, ‘who is obligated to convince the decision-maker that facts exist that mandate him or her to take such action?’ If the decision-maker is not convinced that the facts based on the record in the trial favor the party with the Burden of Persuasion, the decision-maker will not, indeed cannot, intervene. Thus, if the side that has the Burden of Persuasion fails to persuade the decision-maker about the facts, if it does not meet its burden, then the other side wins even if that side sits mutely and never makes any argument at all. In contrast to the rules of blackjack – where ties routinely favor someone, the dealer – ties in litigation are allocated against someone, against the party with the Burden of Persuasion.

In most settings, the party that has the Burden of Persuasion is the side that wants to change the status quo. As Justice O’Connor wrote for the U.S. Supreme Court in Schaffer v. Weast:

When we are determining the burden of proof under a statutory cause of action, the touchstone of our inquiry is, of course, the statute. The plain text of Individuals with Disabilities Education Act (IDEA) is silent on the allocation of the burden of persuasion. We therefore begin with the ordinary default rule that plaintiffs bear the risk of failing to prove their claims. McCormick § 337, at 412 (“The burdens of pleading and proof with regard to most facts have been and should be assigned to the plaintiff who generally seeks to change the present state of affairs and who therefore naturally should be expected to bear the risk of failure of proof or persuasion”); C. Mueller & L. Kirkpatrick, Evidence § 3.1, p. 104 (3d ed. 2003) (“Perhaps the broadest and most accepted idea is that the person who seeks court action should justify the request, which means that the plaintiffs bear the burdens on the elements in their claims”).

546 U.S. 49 (2005) at 56. Emphases added.

But this does not work in special education law. In our cases, the italicized language and the underscored language often point in opposite directions. While the IDEA is indeed explicitly silent with respect to which side bears the burden of persuasion, the Act is quite clear that once a child is receiving special education services (1) the school district has the right and the power unilaterally to change the status quo with respect to a disabled child’s program and placement, so long as it follows the procedures detailed in that Act when it does so; ^[1] unless (2) the family seeks judicial intervention, irrespective of whether they hope to change or maintain the status quo (there are an extremely limited number of small procedural exceptions in which the district has the obligation to request a hearing, none relevant here).

The district, that is, does not need to seek a hearing to get permission to change the status quo for a child already receiving services; it may simply make any change it wishes, once the CSE has convened and crafted an IEP calling for such a change, unless the family requests a hearing seeking to compel the district to maintain the status quo. Similarly, if the district wishes to continue the status quo, the family must seek a hearing if it wishes to compel a change. Either way, the onus is on the family.

Thus, in virtually every instance (other than opposing an Independent Educational Evaluation requested by a parent) the family will be the party that ‘seeks court action’ as described by Mueller & Kirkpatrick in the underscored passage quoted by Justice O’Connor above. BUT, the family will only sometimes be the party that ‘seeks to change the present state of affairs’ in the italicized passage. As a result, the allocation of the Burden of Persuasion would go one way under one of the standard rules cited by the Court in Schaffer but the opposite way under the other, equally authoritative, one.

The IDEA is implemented in each state pursuant to specific state law, and, as Justice O’Connor noted above at the outset, “the touchstone of our inquiry is, of course, the statute.” 546 U.S. at 56. In the case of the IDEA, there are two statutes applicable in each jurisdiction: one federal and one state. For states in which the local statutes are similarly silent about the allocation, Schaffer functions to resolve that ambiguity about how the Burden of Persuasion is allocated. But in New York State, the local allocation was made in direct response to the Schaffer decision and explicitly rejects its conclusions. In New York:

… The board of education or trustees of the school district or the state agency responsible for providing education to students with disabilities shall have the burden of proof including the burden of persuasion and burden of production, in any such impartial hearing, except that a parent or person in parental relation seeking tuition reimbursement for a unilateral parental placement shall have the burden of persuasion and burden of production on the appropriateness of such placement.

NY Educ. L. 4404(1)(c)

So, in New York, even though it is almost always the family that must file the complaint, it is always the district that has the burdens of proof with respect to all aspects of the proceeding (except, in cases seeking reimbursement for a unilateral private school placement, with respect to the demonstration of the appropriateness of that unilateral placement). In sum, in New York, the district must prove that it has offered a free appropriate public education (FAPE) in the least restrictive environment (LRE), in all hearings, no matter what the nature of the family’s challenge.

While the family’s Complaint must detail the specific issues to be addressed in the hearing,^[2] the allocation of the burden of proof to the district means that in every case the district must make at least a minimal showing of each of the elements – set out at least a prima facie case -- that it has in fact offered FAPE in the LRE. If it does not do so, it fails to meet its Burden of Persuasion. Any presumption that the district has provided FAPE unless shown not to have done so by the family improperly offloads the statutory allocation of the burden away from the district and onto the child.

Justice O’Connor, writing for the Court in Schaffer, found the implications of such an allocation troubling: “Petitioners in effect ask this Court to assume that every IEP is invalid until the school district demonstrates that it is not.” 546 U.S. at 59. Indeed, it may seem unfair to presuppose that the school district has by default failed to meet its obligations, that in all cases it is guilty until it can prove its innocence. But, fair or not, that is precisely what the New York statute’s allocation of the burdens does. In fact, it was precisely the intent of the New York State legislature, two years after the Schaffer decision was issued, to adopt a statute that functioned to overturn Schaffer in New York and apply systematic skepticism to the districts’ recommendations.

Despite the seeming imbalance, there were and are four reasons why that allocation is neither anomalous nor inequitable, and why the legislature acted as it did to level a playing field that otherwise, in its view, unfairly favored the districts:

First, the entire due process mechanism – from child find, through evaluation, review of the evaluations, crafting of an IEP, and on to placement offer – must be viewed as a single, continuous flow, not as a series of snapshots. The balance of power shifts from stage to stage, but is, ultimately, a careful exercise in equality and counterpoint. It is a mistake to look at the balance of power in a single snapshot taken at any particular point in the unfolding history of the case.

For example, at the CSE/IEP-drafting stage, the district can do whatever it wants. The parent has a right to participate and be heard, but the decision-making authority lies exclusively with the district, wielded in the person of the district representative in attendance at the CSE review (FN 16. supra). The parent does not even have a right, at that stage, to require that the district explain its reasoning or demonstrate the propriety of the program and placement it has offered. There is an imbalance, strongly favoring the district at this foundational level. But it shifts back if the parent seeks to challenge the district’s decision.

Placing the burden of proof on the district when a family challenges a CSE recommendation by seeking a due process hearing merely rebalances the scales by countering the district’s initial, universal, advantage. Doing so requires that the district, perhaps for the first time, reveal its reasoning and demonstrate the propriety of its decision, and that it do so before a neutral third party. This choice not only moves the process along more smoothly than would a requirement that it do so during the IEP review, by eliminating potentially rancorous and unfruitful debate between two sides with opposing, vested interests and differing views; it introduces a neutral umpireal voice to review the challenged call.^[3]

Second, placing the burden on the district reflects the legislature’s awareness that the district, not the parent, has access to the information needed to determine whether the district’s offer was indeed appropriate. Allocating the burden to the parent, in a proceeding that, among other things, has no discovery phase, would force the family to speculate about information that is exclusively in the district’s control (such as the reasoning behind the district’s program and placement recommendations).

Third, the burden of proof must be viewed in the context of the Rowley/Endrew standard, a substantively minimalist standard that districts should have no difficulty meeting if their actions do indeed comport with the requirements of the Act. As a result, the legislature concluded that shifting the burden to the district simply had the effect of evening up what was otherwise already a lopsided balance.

Most compellingly, though, placing the burden of proof on the district flows from, and is an urgent reminder of, the district’s fiduciary responsibility to educate this child. This process is not some zero-sum game, a tug of war in which either the district or the family will win by tearing the child apart. Rather, even the litigated hearing process is a dynamic element in the collaborative enterprise described at the outset. The district has, and should have, the burden of proof because it has the Constitutional and statutory responsibility to provide the student with a sound, basic, and, for students with IEPs, Endrew-appropriate education. That obligation plays itself out at least in the eyes of this State as properly placing the burdens of production and persuasion on the district.

• • The Standard of Proof – the ‘How Much’ Determining which party must convince the decision-maker is only the first step in allocating burden of proof. A measure must also be articulated – the Standard of Proof – defining just ‘how much’ evidence the party that has the Burden of Persuasion must put forward in order to shift the outcome and prevail.

In most civil actions, and in special education cases in particular, the standard is somewhere in the middle: there must simply be a showing (by the party with the Burden of Persuasion) of enough evidence to tilt the judicial scales in their direction – a standard referred to as a ‘preponderance of the evidence.’^[4] For the party bearing the Burden of Persuasion to prevail, therefore, it must show that, when all the evidence put forward by all sides is balanced in the decision-maker’s equitable scales, the balance tilts, however slightly, in the direction of the party bearing the burden. A gentle evidentiary breeze may be enough to shift the balance in the opposite direction, but so long as the scale at rest tips in favor of the party possessing the Burden of Persuasion, that’s a good enough basis on which to declare full-throated victory. If it does not, if it tilts the other way, or even if it remains in perfect equipoise between the parties – because ties get resolved against the party with the Burden of Persuasion, by definition -- the burden has not been met and that party loses.

The preponderance of the evidence standard is neither daunting nor trivial; what makes the district’s burden in special education cases almost minimal or pro forma lies in application: the substance of the district’s prima facie case – discussed in depth above – sets the bar very low indeed, at the Rowley/Endrew standard: the district need only show, by a preponderance of the evidence, that it had offered a placement ‘reasonably calculated to provide meaningful educational benefit’ to the child.

• • The Burden of Production – the ‘When’ The Burden of Production (also called the burden of going forward) is the ‘when’ of the burden of proof: it means that until both sides have rested their respective cases, one party must always be identified as the one with the obligation to go forward. As in a tennis game, the ball moves back and forth between the two sides, waiting to be swatted by one side’s arguments over to the other’s. In general, as noted by the authorities cited by Justice O’Connor in Schaffer, supra, the burdens of persuasion and production travel together. Dispositively, in New York State, the statute expressly allocates them jointly, assigning the “burden of proof including the burden of persuasion and burden of production” (NY Educ. L. 4404; emphasis added) to the district with respect to all aspects of a special education hearing (other than the appropriateness of the family’s unilateral placement in cases seeking reimbursement).

Of course, that only starts once a case has been initiated. At the outset, the burden of production lies statutorily with the party initiating the impartial hearing: they (almost always the family) must file a Complaint^[5]; that filing then shifts the Burden of Production to the district, which must, first, file a response, and, second, go forward to make its prima facie case. Once it has done so, the burden of going forward shifts to the family, who then have the opportunity to present a case that challenges the district’s initial showing. And when they have taken their best shot, the burden of going forward may shift back again to allow the district to address the issues raised in the family’s case.

• • Putting the Burdens Together: Delivering The District’s Prima Facie Case.

Taken together, these three components define the mechanics of the prima facie case. That is, how much must be proved by whom at the outset of the case. What does it take for a school district to win, if the other side does nothing more than file a Complaint? What is the very least that the party with the Burden of Persuasion must show in order to meet that burden and prevail?

The answer is that, with respect to each essential component of the case (the referral, evaluation, classification, program, and placement), the party with the burden of production (the district) must present enough evidence to meet the standard of proof (preponderance of the evidence) in order to persuade the decision-maker that the burden of persuasion has been met.

When added to the substance of the district’s burden – its obligation to demonstrate that, if the student is eligible for special education it has offered him or her a free appropriate publicly-provided education in the least restrictive environment -- the district’s prima facie showing is as simple as admitting into evidence two documents, supported by at least one witness available for voir dire and cross-examination with respect to each document entered (they could conceivably be the same witness): an IEP (describing the evaluation, making the classification, and defining the program in sufficient detail to permit a determination that it was appropriate) and a Final Notice of Recommendation or a School Location Letter or a Prior Written Notice demonstrating that a specific offer was made.

A district need initially do no more than that.

• • The Family’s Burden: ‘Prong 2.’ Rowley and Endrew provide a single standard against which to measure the appropriateness of a proposed placement, whether it be a district offer or a placement made unilaterally by a family engaged in self-help: whether the program reasonably could have been expected, at the time of placement, to offer meaningful educational benefit to the child. See, e.g., B.R. ex rel. K.O. v. New York City Dep't of Educ., 910 F. Supp. 2d 670, 677 (S.D.N.Y. 2012; “the Court evaluates whether, at the time B.R. was actually considering the proposed placement, the school could offer [services] in line with the IEP”).

But context is everything. Both a skilled obstetrician working in the state-of-the-art delivery suite of a world-class teaching hospital with a team of colleagues and specialists and a terrified spouse pressed into emergency service in the back seat of a taxi pulled over by the side of a standstill traffic jam have the same legal obligation to exercise ‘reasonable care’ in guiding a difficult birth under exigent circumstances. But what that legal obligation means, and how it is applied, are likely to seem very different indeed to a decision maker in the two different sets of circumstance. It’s not just about expertise. It’s about access to equipment and supports, about the capacity to keep the environment sterile, about having assistance near to hand, about the sangfroid that travels with objectivity, and about information available in the hospital setting that can only be approximated at best in the taxi. The spouse’s knowledge and options are foreclosed, his or her timeframe narrower, the investment in survival and success very different.

Similarly, the ‘reasonably calculated’ standard from Rowley may be wielded very differently when it is applied to the district than it is when applied to the family. While it is seldom a daunting standard, even when applied to a district acting in good faith, it should be no surprise that a family seeking a school for a child with special needs will almost always select one that is reasonably calculated to provide meaningful educational benefit. On the other hand, the standard as applied to the district requires a determination that each element of the child’s entitlement – the evaluation, the review, the program, and the placement – be Endrew-appropriate, and that, moreover, the IDEA procedures be followed with the level of compliance defined in the law. Parents have none of these obligations but must simply identify a program and placement that meet Rowley in a global sense. In sum, the Rowley/Endrew standard as applied to the family amounts to the question, “Did they make a mistake?” When applied to a placement made or proposed by a school district, on the other hand, Endrew is predominantly about aspiration. The question amounts to “Did the district aim high enough?”

Thus, parents, who may surely be expected to aim high in their hopes and expectations for their children, will almost always meet a standard that defines the minimum acceptable level of a family’s vision, while districts may well have a somewhat harder time.^[6]

Like the spouse in the taxi, families are amateurs playing a professional game; they lack the obligation to generate an IEP, and often lack the knowledge, specialized skill, and access to the continuum of services that a district has. See Carter, 510 US at 13-14. As a result, when asking whether a unilateral placement was ‘proper under the Act,’ the questions more frequently relevant to the family’s burden will have to do with whether their understanding of the child’s needs was sufficiently clinically-supported, and whether the choice made from among the options available to them hewed sufficiently close to the Rowley/Endrew standard to be better than the next best available alternative (whether it be the district’s offer or an available alternative non-public placement). For a family, reasonableness will in this sense inevitably be a moving target: depending on what programs (including the one offered by the district) were realistically available to the family, was their choice meaningfully calculated to afford sufficient educational benefit that it justified rejection of the district’s offer?

For a district, on the other hand, which must have a mandated continuum of services in place, which must have access to clinical expertise, which must have a CSE review mechanism in place, and which must develop and deliver services based upon a detailed IEP, the Rowley standard is more inflexible, precise, comprehensive, and demanding in application.

Thus, a program that might fall short of Rowley/Endrew when offered by the district, could very well comply with it when provided by the family. It seems, for example, self-evident that a district would not prevail if it had developed a detailed IEP but actually chose not to deliver the bulk of the program but only one or two of the related services from that IEP. They would fail to meet their burden even if the child was likely to benefit from that one related service. And yet, a parent faced with no offer from the district, having searched in good faith for a program that might benefit the child, might find only programs that provide a part of the child’s needed services – forcing them to choose between a program partially compliant with the child’s needs and nothing at all. Such a family – or one that combined services and programs obtained from more than one source into a hybrid placement made up of several non-Rowley-compliant parts – would likely meet the Rowley test as it applies to unilateral placements. Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006):

[P]arents need not show that a private placement furnishes every special service necessary to maximize their child's potential. See M. S., 231 F.3d at 105 (“The test for parents' private placement is not perfection.”) (internal quotation marks omitted). 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.” Rowley, 458 U.S. at 188–89, 102 S.Ct. 3034 (internal quotation marks omitted).

459 F.3d at 365. See also T.K., supra, at 12.

In sum, once the decision-maker has concluded that the district has failed to offer FAPE in the LRE, the family must show that, given what they knew at the time they made their placement, the program they committed to was more likely to accord the child meaningful educational benefit than was the fatally defective program the district had offered (or the lack of any program, as may be the case when the district acknowledges that it failed to offer a program, or when it simply chooses not to present any defense of a placement it did offer).

When the actions of the district amount to a failure to have offered Endrew-defined FAPE, then parents legitimately may remove their children from the public schools in order to seek a program reasonably calculated to provide educational benefit. Where, however, the district shortfall amounts to less than a denial of FAPE, the law expects the parties to work together, including through the exercise of due process, to correct any problems that arise, while the child remains in the public schools (or in a private school at family expense).

• • The Facts Here Again, the family here asserts that the district failed to offer this student an appropriate placement for the 2021-2022 school year, and as such, it was necessary for the family to unilaterally place the child in a nonpublic program the family felt was appropriate. As proposed remedies for the alleged denial of FAPE, the family requested that the district be required to pay, directly to the nonpublic program, for the full cost of the student’s school costs for the school year, fund the student’s private transportation costs, as well as an order compelling “a new IEP meeting to address changes, if necessary.” Ex. A-6.

As discussed above, the district carries the legal burden (both production and persuasion) of refuting the family’s allegations as alleged in the due process complaint by demonstrating that it had offered the student a FAPE. See N.Y. Educ. Law § 4404(1)(c).

The family asserted several errors and omissions by the district in the due process complaint that, according to them, constitute a deprivation of FAPE to the child. Although I do not here rehearse the broad range of claims made by the family (for which one may turn to the Complaint itself), it is worth highlighting that the family claimed, among other things, that the district failed to provide the family with both the IEP and a notice of school placement prior to the start of the 2021-2022 extended school year in early July, 2021, and that notwithstanding the student’s clear need for full-time 1:1 paraprofessional support both during the school day and during transportation to and from school, the district failed to make such recommendations on the IEP. See Ex. A-3 – A-5.

A review of the hearing record compels the conclusion that the district did not carry its burden of either production or persuasion with respect to the provision of FAPE to this student for the 2021-2022 school year.

First, the family clearly and unambiguously alleged that the district failed to timely provide the family with either the IEP or a notice of the school location where the district proposed to implement the recommended program; indeed, such allegations are the first of those itemized regarding the district’s errors and omissions in the due process complaint. See Ex. A-3. See also Ex. E-2 (family notice letter to the district, advising the district that it did not timely provide the family with a placement notice).

The district, however, did not introduce any evidence reflecting the family was timely provided with these essential documents. To be sure, the district submitted documentary evidence that reflected the Prior Written Notice and School Location Letter were dated June 14, 2021 and there is a notation that they were to be mailed to the family. See Exhs. 3-4, 3-5, 4-2 – 4-3. However, the family’s allegations that they were not timely provided the IEP and placement notice triggered the district’s burden under Educ. Law § 4404(1)(c) to demonstrate that such allegations were without merit. The district failed to introduce direct evidence – such as testimony or documentary evidence reflecting the transmission of these documents, by whom, and on what date – that the school notice was actually sent in a timely fashion. Moreover, there is not even an iota of evidence from the district about when or how the IEP was transmitted to the family. Even if they were arguably transmitted on June 14, 2021, it is far from clear that that would have been timely notice, especially for a child whose needs are as complex as this one’s. The district would have had to show that the placement was available at that time to be previewed by the family and that all of the various services could have been at least explored in that review.

In sum, as a matter of law, the district has not rebutted the family’s allegations that the IEP and SLL were not sent to the family prior to the start of the school year. On that basis alone, the student was deprived of a FAPE. See, e.g., Cerra v. Pawling Cent. School Dist, 427 F.3d 186, 194 (2d Cir. 2005) (family must be provided IEP prior to the start of the school year); Application of a Student with a Disability, Appeal No. 21-077 at pp. 9-11 (available at https://www.sro.nysed.gov/common/sro/files/Decisions/2021/pdfversion/21-077.pdf); see also Application of the New York City Dep’t of Educ., Appeal No. 08-058 at pp. 7, 10-11 (available at https://www.sro.nysed.gov/common/sro/files/Decisions/2008/pdfversion/08-058.pdf).

Independent of the district’s failure to grapple with the contested issue of whether it actually provided the family with the IEP and school placement notice in a timely manner – or even establish a mailing/emailing presumption in the first place – the hearing record reflects that, consistent with some (although not all) of the family’s allegations in the due process complaint, the IEP was substantively and fatally defective.

The family claimed that the district failed to recommend the necessary support of a 1:1 paraprofessional for the student, both during the school day and as a transportation accommodation. See Ex. A-4 – A-5. I Find that the record supports the determination that the student in fact required the para to receive a FAPE. The district certainly did not overcome the evidence to this effect.

The IEP does not recommend either a full time 1:1 paraprofessional during the school day or the assistance of a dedicated 1:1 professional as a transportation accommodation. See Exhs. B-18, B-21, D-1. The district’s school psychologist testified that the stray references to paraprofessional support in the IEP were meant to refer to the classroom-wide paraprofessional of the recommended 6:1+1 program. See Tr. 64.

The hearing record, however, clearly and convincingly reflects that due to their myriad needs, the student requires full-time 1:1 paraprofessional attention and support, both during the school day and during transportation, to, among other things, provide redirection, cessation of repetitive or self-harm/self-stimulating behaviors, as well as to assist with meals and otherwise ensure the student’s safety. See, e.g., Tr. 112-114; Exhs. C-2, C-7, C-9, C-15, M-2 – M-4.

The district, which had the obligation to ensure the student was fully evaluated, provided no information casting doubt upon the information provided by the school and family to the CSE. Despite this, the team deviated, without any persuasive basis, from the recommendations of those that worked with the student. See Tr. 62 (all of the information that was before the CSE came from the school and the family). See A.M. v. New York City Dep't of Educ., 845 F.3d 523, 542-546 (2d Cir. 2017). The failure to recommend a dedicated, full time 1:1 paraprofessional to support this student during the school day by itself also constitutes a deprivation of FAPE.

The family further alleged that the district failed to recommend 1:1 paraprofessional support for the student as a necessary component of the student’s travel accommodations. See Ex. A-4 – A-5. Unlike the issue with respect to the absence of a dedicated 1:1 classroom paraprofessional, the issue is even more cut-and-dried here: there is no factual dispute that the district did not make such a recommendation (see Exhs. 1-37 – 1-38, 3-2; District Closing Memorandum at p. 12), nor has the district meaningfully disputed the student’s need for such assistance, for which it had actual notice (see Exhs. 7-45, C-44, C-48). The student’s need for such support is further corroborated by the fact that the district had made such a recommendation as part of the student’s prior IEP (see Ex. L-46). The closest thing to a clinical justification for the absence of 1:1 transportation paraprofessional support for the student was that the CSE’s hands were tied with red tape. See Tr. 64-67, 75-76, 78-80; Ex. B-21.

That excuse is utterly unavailing. Under the IDEA and State law, the CSE is the final arbiter of a student’s special education program. The district’s practices in this regard – which deprive the CSE of its statutory authority to make the educational decision for the student’s program – is on its face improper and surely does not count as a justification of its actions, even if it may explain their genesis. This, too, constitutes an independent basis to find the district denied the student a FAPE.

Turning to the second Burlington/Carter factor – whether the private school was an appropriate program reasonably calculated to meet student’s needs for the 2021-2022 school year – I find that the record reflects that the program was appropriate for the student.

First, the school’s program for the 2021-2022 school year is substantially similar to the program the student received during the prior (2020-2021) school year, which I recently determined to be substantively appropriate for the student in a prior impartial hearing. See Exhs. C-48 – C-50, L-57 – L-58, M-3 – M-4. While this is not dispositive, given the extreme similarities of the programs, and no evidence of any fundamental error with respect to or appeal of the prior determination of appropriateness (Exhibit L), nor evidence of fundamental change in the student’s assessments or needs between the school years, the presumption that continuation of a similar program would remain appropriate for the student is an obvious starting point for the analysis here. See S.H. v. Eastchester Union Free School Dist., 2011 WL 6108523, at *10 (S.D.N.Y. Dec. 8, 2011); F.L. v. Bd. of Educ. of the Great Neck U.F.S.D., 274 F. Supp. 3d 94, 120 (E.D.N.Y. 2017) (where a student made progress under a prior program, a successive, substantially similar program modeled upon the previous, progress-inducing program was appropriate).

Next, the family affirmatively introduced substantial evidence reflecting the student received a narrowly-tailored, supportive, specialized program for the 2021-2022 school year. See, e.g., Tr. 100-115; Exhs. C-47 – C-50; K-1, M-2 – M-4. Given that the student was in a substantially similar program the prior year in which the student made progress (see Ex. L-53), it was eminently reasonable for the family, when they enrolled the student in the nonpublic program for the 2021-2022 school year, to believe that the student would continue to make progress – the essence of the family’s burden under Burlington/Carter and NY Educ. L. 4404. See Endrew, supra and R.E. v. New York City Dep't of Educ., 694 F.3d 167, 187 (2d Cir. 2012). The record also reflects the student’s progress during the school year at issue (see Tr. 126-127; Exhs. M-4, N-3), which while not a decisive factor, is nonetheless corroborative of the program’s appropriateness for the child.

Finally, it is axiomatic that families are held to a more lenient legal standard in demonstrating the appropriateness of a unilateral program than a school district is to proving it offered a student a FAPE. See, e.g., C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836-837 (2d Cir. 2014); see also Frank G., 459 F.3d at 364. “The test for the private placement ‘is that it is appropriate, and not that it is perfect.’” T.K. v. New York City Dep't of Educ., 810 F.3d 869, 877–78 (2d Cir. 2016) (citations omitted).

I Find that the family has demonstrated both that the nonpublic program was reasonably calculated to provide the student with meaningful benefit, and that the program is appropriate for the child’s 2021-2022 school year.

As was the case in their prior impartial hearing, the family has again also requested public funding of the private transportation services secured and contracted for the school year in question. See Ex. A-6. Similarly echoing last year’s hearing (see Ex. L-58), the family has provided virtually nothing about the nature of the transportation services they are asking me to order the district to fund, instead simply introducing the transportation contracts into evidence. See Exhs. I, J. Similarly, there was no explanation as to why the family did not utilize transportation services via the district’s office of pupil transportation.

Despite these noticeable absences – which are all the more conspicuous, as they were explicitly spelled out to the family and its counsel via the decision for last year’s case (see Ex. L-58 - L-59) – the student was and is nonetheless entitled to appropriate specialized transportation from the district under State law. See Educ. Law § 4402(4)(d).

I thus order that the district fund the family’s private transportation costs at a fair market rate based on comparable transportation, from a comparable vehicle with comparable accommodations for transportation services to and from the private program, for services actually provided during the school year.

There is a subsidiary issue related to transportation about which there is a similar lack of evidence in the record on which I could base a decision as to whether the payments the family seeks are within reasonable market practice for such transportation: Specifically, the family entered into a contract whereby the provider would be paid even for days on which no service was provided (a significant number of days during the period under review). It appears that the transportation contract is with a provider who subcontracts the actual provision of the service out to a transportation company. It is not clear from the record whether there is a comparable provision in that subcontract. If the family can document to the Implementation Unit that these terms and conditions are acceptable to any major third party-payer such as Medicare, or Medicaid, or health insurance companies, then that should contribute to a determination by the parties of what constitutes fair market cost for these services. If they cannot agree, then the family, of course, may seek a new hearing about that lack of agreement and, one hopes, if framed in that fashion both sides will bring relevant evidence to bear.

With respect to the equities, I find no compelling basis to alter or otherwise reduce the tuition relief I am granting the family based on any purported misconduct or unclean hands by the family. The district argues that the family’s intentions with respect to nonpublic school enrollment warrants and equitable bar of relief. See District Closing Memorandum at pp. 2, 22-23. The record is replete with evidence that the family cooperated with the district throughout the CSE process. See, e.g., Tr. 62; Exhs. 2-1, E-1 – E-2, N-2. As such, the district’s argument is flawed as a matter of law, unpersuasive, and rejected. See C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 840-841 (2d Cir. 2014) (where families cooperate with school districts, familial intent regarding school enrollment is legally irrelevant). I similarly reject the district’s alternative argument that the nonpublic program’s costs are unduly expensive. District Closing Memorandum at pp. 23-25. As noted supra, the private program provided the student a comprehensive, service-rich program that met the child’s needs, and I am not convinced the record suggests, let alone compels, an equitable reduction of an otherwise appropriate award of tuition funding on this (or any other) basis.

• • ORDER.
• • As detailed above, I Find that the family’s placement was and continues to be appropriate and I Order the district, to the extent not already paid for by the district pursuant to pendency, to (1) to reimburse the family for their out of pocket tuition costs for the child’s placement (inclusive of the costs of related services) during the 2021-2022 school year; (2) to pay directly to the school any outstanding amount as yet unpaid for the program and related services for the 2021-2022 school year; (3) Order that the district directly fund the costs of transportation of the student during the 2021-2022 school year at a fair market rate as detailed above; and Finally, I Order the district to provide a copy of both this decision and my prior decision for this student (Ex. L) to any person participating in any review of this student’s placement that takes place during the next twelve (12) months from the date of this decision. The copies of these decisions shall be provided by the district to all meeting participants at least three (3) school days in advance of such CSE meeting.

April 10, 2022

John Farago, 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.  The regulations governing appeals 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.

As those Regulations detail, before filing an appeal, if either party intends to appeal the decision, a Notice of Intention to Seek Review shall be personally served upon the opposing party before the Appeal itself is filed, no later than 25 days after the date of the decision sought to be reviewed.

The Appeal itself must 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.

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.

DOCUMENTATION ENTERED INTO THE RECORD BY THE DISTRICT

DOCUMENTATION ENTERED INTO THE RECORD BY THE FAMIL

Footnotes

[1] The U.S. Department of Education’s 1999 Appendix A to Part 300 Regulations implementing the IDEA address this question explicitly: What is a public agency’s responsibility if it is not possible to reach consensus on what services should be included in a child’s IEP? The IEP meeting serves as a communication vehicle between parents and school personnel, and enables them, as equal participants, to make joint, informed decisions regarding the (1) child’s needs and appropriate goals; (2) extent to which the child will be involved in the general curriculum and participate in the regular education environment and State and district-wide assessments; and (3) services needed to support that involvement and participation and to achieve agreed-upon goals. Parents are considered equal partners with school personnel in making these decisions, and the IEP team must consider the parents’ concerns and the information that they provide regarding their child in developing, reviewing, and revising IEPs (Secs. 300.343(c)(iii) and 300.346(a)(1) and (b)). The IEP team should work toward consensus, but the public agency has ultimate responsibility to ensure that the IEP includes the services that the child needs in order to receive FAPE. It is not appropriate to make IEP decisions based upon a majority “vote.’’ If the team cannot reach consensus, the public agency must provide the parents [FR Page 12474] with prior written notice of the agency’s proposals or refusals, or both, regarding the child’s educational program, and the parents have the right to seek resolution of any disagreements by initiating an impartial due process hearing.

[2] ‘Issues’ may unduly cast the family’s obligation with respect to the Complaint; it is meant to be a forum in which parents may appear pro se and the terms used make it clear that the requirement is for ‘notice pleading’: “a description of the nature of the problem of the child relating to the proposed or refused initiation or change, including facts relating to the problem.” 34 C.F.R. § 300.508(b)(5).

[3] The Supreme Court in Endrew made this very point about the imbalance of power prior to the administrative hearing: “By the time any dispute reaches court, school authorities will have had a complete opportunity to bring their expertise and judgment to bear on areas of disagreement. A reviewing court may fairly expect those authorities to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 993 (2017).

[4] Although the New York and federal statutes are silent with respect to the standard of proof in special education hearings, they both specify that the standard with respect to the de novo judicial review of the subject matter of those hearings shall be ‘preponderance of the evidence.’ NY Educ. Law § 4404.

[5] To be sure, as noted above, the family has an obligation to frame the hearing issues in their Complaint, and the hearing is bound to address the problem(s) alleged and no others, but that is explicitly a factual description – “a description of the nature of the problem of the student relating to such proposed or refused initiation or change, including facts relating to such problem” [8 NYCRR 200.5(i)(1)(iv)] – not a legal one. The obligation of the family in their Complaint is to provide the district with facts sufficient to convey notice of the substantive nature of their concern, they need not specify their legal theory of the case. The two may be very different indeed and it may not be easy to discern from the former what the latter may turn out to be. Thus, for example, a Complaint that alleges that a proposed placement has too many distractions for a child diagnosed with ADHD could constitute a sufficient description of the problem with the placement, without detailing whether the family is challenging the district’s evaluation, the IEP it has generated, or the placement it is proposing. It could be any or all of these, and the district’s initial burden is affirmative: it must make at least a minimalist showing of the propriety of each. Families, under the IDEA, are not required to be experts on the law; they need simply articulate the nature of what they disagree with their child’s school district about.

[6] This does not mean that, once a district has failed to meet its burden, the family will almost automatically win because theirs is so low. The equities may well still not favor reimbursement. Reimbursement for all or part of a unilateral placement may be inappropriate because it falls too far in the opposite direction –the family has opted for a ‘Cadillac’ when a ‘Chevy’ could have gotten the child to his or her Rowley-defined destination. That, however, is not properly an argument about the propriety of the family’s placement, but, rather, an argument that the family should not be entitled to recapture the full cost of their placement – an argument about how the equitable remedy should be sculpted. When the parents’ unilateral placement exceeds the child’s minimal Rowley entitlement, a decision-maker balancing the equities has the opportunity -- though not the obligation -- to whittle the desired remedy down from reimbursement for what the parents obtained to something closer to the cost of what the district should have offered; the equities, not Rowley or the parents’ burden, allow the judge to reshape the remedy under these circumstances, Similarly, when families prioritize other values ahead of their child’s education – prejudice, even bigotry, or religion or cultural values – and decline a public offer and insist on a non-public school that comports better with their notion of what they want for their child, they run the very serious risk that the decision-maker won’t feel that the equities tilt in their favor. They may even find that a decision-maker believes that a Guardian ad Litem need be appointed to protect the child’s interests.