New York City Department of Education, Impartial Hearing Decision

NAMES AND TITLES OF PERSONS WHO APPEARED

JANUARY 7, 2022 *

For the Student:

REDACTED O, ESQ., Attorney

For the Department of Education:

REDACTED, District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

JUNE 29, 2022 *

For the Student:

REDACTED, ESQ., Attorney

For the Department of Education:

REDACTED., Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

JULY 20, 2022 *

For the Student:

REDACTED., Attorney

REDACTED, Parent Student

REDACTED LCSW, Assistant Head of School

For the Department of Education:

REDACTED, ESQ., Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

SEPTEMBER 9, 2022 *

For the Student:

REDACTED, ESQ., Attorney

REDACTED, Parent Student

REDACTED, Psy. D., REDACTED

For the Department of Education:

REDACTED., Attorney

* All appearances were by video conference.

This case was brought before the undersigned Impartial Hearing Officer 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 (Student) is A REDACTED-year-old student whose parents REDACTED and REDACTED (Parent) brought the instant action, arguing that the DOE had failed to provide their child with a free appropriate public education (FAPE) for the 2021-2022 school year.

The hearing convened January 7, 2022. It continued June 29, 2022, July 20, 2022, and concluded on September 9, 2022. The Parents offered exhibits P, A-W, and above various objections by the District the only exhibit that was not entered was exhibit B. (See exhibits attached.) The Parent also presented three witnesses. The District offered no evidentiary nor testimonial evidence. Extensions were granted in accordance with regulations and the record closed upon receipt of the remaining evidence.

DISTRICT AND PARENT POSITIONS

The Due Process Complaint (DPC) dated July 23, 2021, included multiple claims that the DOE had failed to provide the Student an appropriate educational program and placement for the 2021-2022 school year, requesting reimbursement for unilateral placement at REDACTED (School) because of the DOE's alleged failure to locate a program, public or private, that could implement the student's Individualized Educational Program (IEP). It further requested reimbursement for transportation costs. (P exhibit A).

On July 20, 2022, during the hearing, the District representative stated that a Prong case would not be presented, and rested on the evidentiary record presented by the Parent. REDACTED The Parent argues that not only was the child denied a FAPE, but after giving the District notice about the decision to place the child at the unilateral placement, he is thriving academically. The Parent further contends that full cooperation was given to the DOE in this case.

FINDINGS OF FACT

REDACTED is now a REDACTED-year-old by, with a diagnosis of Mixed Receptive Expressive Language Disorder, Dyspraxia, and Sensor Processing Disorder. He struggles significantly with language, attention, and self-regulation which impacts his academic, social, emotional, and adaptive functioning. (P exhibit E).

On May 11, 2021, the CPSE developed an IEP for the Student which indicated that the student should be placed in a NYC DOE school, non-specialized. He was recommended an Integrated Co-teaching (ICT) placement, with a 12:1+1 ratio. The Parent raised objections at the time of the meeting stating that an ICT and 12:1 class setting in a community school would not offer the level of support that the child needs. (P exhibit E-31).

According to the DPC, the parent alleges that the class offered was a "bridge" class which spans kindergarten through second trade, and as such would offer a high level of individual attention. This recommendation is inconsistent with the findings by Clinical Neuropsychologists REDACTED based on the evaluation that was done on April 6, 2021, prior to the IEP meeting held in May. Said report noted that due to REDACTED's variable cognitive and academic profile, he requires a class of less than 12 students with a high degree of direct one-to-one instruction throughout the day provided by highly trained special educators who are expert at dealing with students with language disorders. The report further stated that absent REDACTED such a placement, he will not be able to make appropriate progress. (P exhibit D-3).

Through his affidavit, REDACTED, stated that he is familiar with REDACTED program and it is place with provides the type of supports needed for the student. He further notes that upon review of the "End of Year Academic Report and Assessment Summary, his opinion that the School is well matched to the students requirements. He pointedly states that it is his professional opinion that the REDACTED placement was an appropriate placement for the 2021-2022 school year. (P exhibit V- 4, 5).

The Parent gave a detailed assessment of the student's current condition and needs during her testimony. She describes that the REDACTED has been "life changing for REDACTED. He has made tremendous progress.". She continues, "he is speaking in sentences", "is socializing", "has become a leader in the classroom" and is overall more social. (Transcript pp. 89-90).

The Parent notified the DOE of the intention to place the student at REDACTED because of concerns about the recommendations made by the IEP. (P exhibit G). The Parent states that no one replied to her letter regarding the IEP or the program, so the Parent unilaterally placed the Student. (transcript p. 92). The Parent paid the full tuition amount, and incurred transportation costs for which reimbursement is being sought in this case. (transcript pp. 91 and 93).

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 REDACTED 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

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 stated in the closing statement that that the IEP provided for the least restrictive environment for the student, and that the Districts placement was the most appropriate. However, this was after the DOE had already waived the Prong I claim and did not provide any documentary evidence or witness testimony to support its position. REDACTED The District also did not note any issues concerning equity in this matter.

For the reasons noted, I find the district failed to provide a FAPE for the Student.

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 student. M.S. v. Board of Education of the City of Yonkers, 231 F.3d 96, 104 (2d Cir. 2000); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 94-29; Application of a Child with a Disability, Appeal No. 95-57. In order to meet that burden, the parents must show that the Kids First offered an educational program designed to meet Student's special education needs. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985). 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 parents have sustained their burden of demonstrating the appropriateness of the program at REDACTED. It was established through testimony and other evidence that the School provides the types of services and instruction that the Student is in need of and it is found that he made significant progress at this placement by the Parent and the neuropsychologists.

For all the above, I find that the Parent has demonstrated the appropriateness of the program at Student's Academy for the Student. REDACTED

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). In this case, the Parent did inform the 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, the did not raise any objections, and the Parent demonstrated that full cooperation was given to the DOE, but rather, it was the DOE that failed to follow up on the notice given by Parent. REIMBURSEMENT.

A hearing officer is empowered to grant relief he, she or the court determines to be appropriate. 34 C.F.R. §300.516(c)(3). Once such remedy is reimbursement of tuition and REDACTED related expenses. Florence Cunty Sch. Dist. Four v. Carter, 510 U.S. 7, IDELR 532 (1993); Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S.359, 103 LRP 37667(1985). A local education agency (LEA") may be required to reimburse parents for their tuition payment to a private school for the services obtained for the student by his or her parents if the services offered by the LEA were inadequate or inappropriate, the services selected by the parents were appropriate under the Act, and equitable considerations support the parents' claim for reimbursement. Id. In Burlington, the Court found that Congress intended retroactive reimbursement to parents by a Lea as an available remedy in a proper case. Burlington, 471 U.S.at 370-71. "Reimbursement merely requires [an 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] Id. The mere fact that the private school placement does not bar the parents from reimbursement. Florence County Schl. Dist. Four v. Carter, 510 US. 7 (1993).

The initial inquiry is whether the student's IEP and/or placement is/are "proper or "appropriate." School Comm. Of Burlington, 471 U.S. at 369 and 374. However, this initial inquiry may go beyond the appropriateness of the IEP and/or placement, See, e.g., Forest Grove

v. T.A., 57 U.S. 230 (2009) (child find); P.C. v. Oceanside Union Free Sch. Dist., 818 F. Supp. 2d 516 (E.E.N.Y. 2011) (eligibility) Mr. N.C. v. Bedford Cent. School. Dist., 300 F. App's 11(2d Cir. 2008) inappropriate evaluation).

In this case, it was established that the recommendations made by the District did not agree with the recommendations made by the Independent Evaluation of the Student, and also, did not heed the concerns raised by the Parent at the IEP meeting and the 10-\ day Notice.

Should the hearing officer determine that the school district did not offer a FAPE to the REDACTED student, the next inquiry is whether the parent's unilateral placement is appropriate" or "proper". School Comm. Of Burlington, 42 U.S. at 369 and 370; see also Carter 510 U.S. at 15.

I find that the Parent demonstrated through documentary and testimonial evidence that the unilateral placement was appropriate for the student for the 2022-2023 school year.

The final consideration is the balancing of the equites. In this step, the hearing officer must examine the action of the parents and school district, including:

1. Whether the parents failed to provide the school district with timely notice, either at the most recent IEP team meeting oar at least 10 business days prior to removal of the student from the public school of their rejection of the proposed public placement, including their concerns and intent to enroll the student in a private school at public expense. 20 U.S.C. § 1412(a)(10)(C)(iii)(I); 34 C.F.R. § 300.148(d)(1).

2. Whether prior to the student's removal, the school district informed the parents of its intent to evaluate the student, but the parent did not make the student available for the evaluation. 20 U.S.C. §1412(a)(10)(C)(iii)(II), 34 C.F.R. § 300.148(d)(2).

3. Whether the parents' action was unreasonable. 20 U.S.C. §1412(a)(10)(C)(iii)(III), 34 C.F.R. § 300.148(d)(3).

4. Whether the cost of the private placement is unreasonable. Florence County Sch. Dist. Four v. Carter, 510 U.S. at 16.

5. Whether there was a lack of parental cooperation with the school district.

C.G. v. Five Town Community Sch. Dist., 513 F.3d 279 (1st Cir. 2008)

In this case, the Parent gave timely notice, and the District did not attempt to evaluate the Student, offer an alternative placement, or even respond to the Parent's concerns. If find the REDACTED

Parent's action and the cost to be reasonable. Lastly, the District failed to demonstrate a lack of cooperation on the Parent's part.

ORDER

Based upon the above Findings of Fact and Conclusions of Law, it is hereby ordered that:

1. The DOE shall directly refund the student's tuition at the REDACTED for the 2021-2022 school year.

2. The DOE shall also fund the cost of transportation for the 2021-2022 school year.

IT IS SO ORDERED.

Dated: March 29, 2023

Annette HIkcs Gill

ANNETTE HICKS GILL

Impartial Hearing Officer

Case No. REDACTED

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. REDACTED

EXHIBITS

DEPARTMENT OF EDUCATION EXHIBITS

None

PARENT EXHIBITS

A. Exhibit Description of Document Date of Document Pages Due Process Complaint 7/23/21 11 pages

B. IEP 6/23/20 18 pages

C. Neuropsychological Evaluation 9/21/20 13 pages

D. Neuropsychological Addendum 4/16/21 4 pages

E. IEP 5/11/21 32 pages

F. 2021/22 REDACTED 6/18/21 5 pages

G. CSE Letter 6/2/21 1 page

H. Class Schedule 2021/22 1 page

I. REDACTED Program Description Undated 2 pages

J. REDACTED Tri-Fold Undated 2 pages

M. K Math Goals 2 021/22 2 L OT Goals 2021/22 2 REDACTED Academic Report & Assessment 6/10/22 7 pages

O. N Classroom Goals 2021/22 1 REDACTED Speech & REDACTED Language Evaluation 6/24/22 15 pages

Q. P Literacy Goals 2021/22 2 Speech & language Pathology Goals 2021/22 5 pages

S. R Language Arts Goals 2021/22 3 REDACTED Occupational Evaluation 6/25/22 17 pages

T. Attendance Record 2021/22 1 page

U. CV of REDACTED Undated 9 pages

V. Affidavit of REDACTED, 8/30/22 5 pages

PSY.D. REDACTED

W E-ZPass Statements 2021/22 25

IHO EXHIBITS

None