NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
NAMES AND TITLES OF PERSONS WHO APPEARED
MARCH 4, 2022 *
For the Student:
"REDACTED", ESQ., Attorney
For the Department of Education:
NONE
NAMES AND TITLES OF PERSONS WHO APPEARED
APRIL 5, 2022 *
For the Student:
"REDACTED", ESQ., Attorney
For the Department of Education:
"REDACTED", PH.D., District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
MAY 3, 2022 *
For the Student:
"REDACTED", ESQ., Attorney
"REDACTED", Parent Student
For the Department of Education:
"REDACTED", PH.D., District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
MAY 31, 2022 *
For the Student:
"REDACTED", ESQ., Attorney
For the Department of Education:
"REDACTED", PH.D., District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
JUNE 8, 2022 *
For the Student:
"REDACTED", ESQ., Attorney
For the Department of Education:
"REDACTED", PH.D., District Representative
* 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 an redacted-year-old student whose parents "REDACTED" and "REDACTED" (Parent) brought the instant action, arguing that the DOE failed to provide their child with a free appropriate public education (FAPE) for the 2021-2022 school year.
The hearing convened May 31, 2022, and continued on June 8, 2022. 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 notice (DPCN) dated September 20, 2021, included multiple claims that the DOE had failed to provide Student an appropriate educational program and placement for the 2021-2022 school year, requesting tuition 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).
The parent further maintained that the "REDACTED" School was appropriate and reasonably calculated to confer educational benefit as it is geared to the student's specific educational needs. Also, it is the parent's position that the student has made progress and has now graduated high school because of the education provided by the school.
The district representative raised no issues related to equity and agreed to limit the scope of the hearing to the appropriateness of the placement.
FINDINGS OF FACT
On July 16, 2021, the CPSE developed an IEP for the Student which indicated various strengths and weaknesses. It contained recommendations for Language Services and identified a coordinated set of transition activities (Parent's Exhibit C).
The parent submitted a Notice of Placement (10-Day Notice) which rejected the IEP developed by the DOE as it is not appropriate and not reasonably calculated to confer the student educational benefit. (Parent's Exhibit B).
The parent presented an Enrollment Contract (Parent's Exhibit D) which outlines the cost of tuition for the REDACTED School. A Schedule for the school year (Parent's Exhibit E) and a Tuition Payment Affidavit (Parent's Exhibit F) were also provided. An academic Report (Parent's Exhibits G&H) outlines the progress that the student has made while at the school. Lastly, an affidavit of REDACTED (Parent's Exhibit I) gives an overall description of the services and academics provided by the school, and outlines what was done for the student to meet his needs.
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
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 did not state that the DOE had provided the child with a FAPE in the 2021-2022 school year, neither did he provide any documentary evidence or witness testimony to the contrary.
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 the unilateral placement. As evidenced by the Academic Report and the Affidavit of the School Chair, the school was found to be appropriate to meet the student's unique learning needs as he requires a smaller class setting and the individualized instruction provided.
For all the above, I find that the parents have demonstrated the appropriateness of the program at "REDACTED" 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). 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, 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 the unilateral placement.
REIMBURSEMENT
A hearing officer is empowered to grant relief that 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 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 public-school placement was not able to meet the student's needs as demonstrated by the testimony of the District's Teacher and the parent.
Should the hearing officer determine that the school district did not offer a FAPE to the student, the next inquiry is whether other 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.
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). and
4. Whether the cost of the private placement is unreasonable. Florence County Scho. Dist. Four v. Carter, 520 zu.S. at 16.
In this case, the District Rep noted that there were no issues concerning equity in this matter. The Parent provided the school with timely notice, the parent was not found to be uncooperative, and all other actions of the parent were reasonable. As such, it is ordered as follows:
ORDER
1. The DOE shall directly fund the student's tuition at the "REDACTED" School for the 2021-2022 school year at a cost not to exceed $87,616.00, upon submission of proof of attendance.
2. Payment under Paragraph 1 of this Order shall be reduced by any payment paid under any Pendency Order issued in this case.
IT IS SO ORDERED.
Dated: October 30, 2022
_Annette Hicks Gill
ANNETTE HICKS GILL
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 *
1. Due process complaint 09/20/2021 7 pages DOE
2. Ten Day Notice 08/25/21 2 pages DOE
3. IEP 07/16/2021 20 pages DOE
4. Prior Written Notice 08/27/2021 4 pages DOE
5. School Location Letter 08/27/2021 3 pages DOE
6. Academic Report 06/11/2021 1 page DOE
7. Updated Academic Evaluation 07/23/2017 9 pages DOE
PARENT EXHIBITS
A. Due Process Impartial Hearing Request 09/20/2021 5 pages
B. Notice of Placement (10-Day Notice) 08/25/2021 2 pages
C. IEP 07/16/2021 18 pages
D. Enrollment Contract 02/14/2021 4 pages
E. Schedule 2021-2022 1 page
F. Tuition Payment Affidavit 03/09/2022 1 page
G. Academic Report 2020-2021- 4th Quarter 03/22/2022 1 page
H. Academic Report 2020-2021- 4th Quarter 03/22/2022 1 page
I. Affidavit of "REDACTED" 04/25/2022 10 pages