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CASE NUMBER: 562220 NYC: 218071
FINDINGS OF FACT AND DECISION REDACTED
NAMES AND TITLES OF PERSONS WHO APPEARED
OCTOBER 12, 2021 *
For the Student:
"REDACTED", Attorney
For the Department of Education:
"REDACTED", PH.D., District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
November 4, 2021 *
For the Student:
"REDACTED", Attorney
For the Department of Education:
"REDACTED", PH.D., District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
December 3, 2021 *
For the Student:
"REDACTED", Attorney
"REDACTED" Neuropsychologist
"REDACTED", Parent Student
For the Department of Education:
NONE
* All appearance were by telephone.
This case was brought before me pursuant to appointment by the New York City Department of Education (DOE) under the Individual with Disabilities Education Act (IDEA), 20 United States Code §1415(f)(1).
"REDACTED" is redacted-year-old student whose parents "REDACTED" brought the instant hearing, arguing that the DOE had failed to provide REDACTED with a free appropriate public education (FAPE) for the 2021-2022 school year.
The hearing convened for hearing on October 12, 2021, and a request for an adjournment was made. The hearing reconvened on November 4, 2021, at 9:00 am and once again the matter was adjourned. Finally, on December 3, 2021, a third date, the hearing began at about 9:15 am and was held without the appearance of a representative of the district. The hearing officer in this case called the District Representative's office and emails were sent, however, there was no response. Extensions were granted in accordance with regulations and the record closed.
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 2020-2021 school year, and a request for tuition reimbursement for the unilateral placement of the student in the 2021-2022 at the "REDACTED" School.
As noted, a hearing was conducted December 3, 2021, with no appearance of the District. At that time, the Parent's attorney stated that the parents maintained that the Department of Education failed to demonstrate that it could address the identified needs of the student. It was further stated that the breadth of the student's needs in terms of level of performance, management needs, academic and social-emotional goals were not covered in the Individualized Education Program (IEP). The program was insufficient to address the student's needs.
The parents also alleged that they did not receive a placement that was able to implement the IEP for the student. As such, it was the parents' position that they should be reimbursed for the unilateral placement of their child at the "REDACTED" School for the entirety of the 2021-22 school year.
Parents also noted that the uncontroverted testimony of the affidavits of six witnesses and the evidence in the record demonstrated that the student's needs were met at the school at which the student was unilaterally placed. The Parents further stated that they gave the requisite notice of unilateral placement, however, there was no response from the District. Lastly, parent's attorney argued that the request for tuition reimbursement is in keeping with the equities in this case.
The hearing moved forward without the appearance of the District, as such, there was no position presented.
FINDINGS OF FACT
The Parents presented proof it's notice to the District (Parent's Exhibit B) of their unilateral placement of their child at the REDACTED ten days prior to the start of the school year. They maintained that the District failed to respond to that notice. The Parents also presented a Neuropsychological and Education Evaluation (Parent's Exhibit C) which outlined the student's needs and provided recommendations based on that evaluation. A contract for the student's enrollment was also presented outlining the tuition policy (Parent's Exhibit D). The amount of the tuition is $72,725.00. The Parents then presented the IEP that they maintained was not appropriate for the child (Parent's Exhibit E). The Parents finally presented an end of the year report which demonstrated that the student had been responding to the support, accommodation, and modifications made at the REDACTED (Parent's Exhibit H).
The student's mother testified that the student responded very well at the school and was able to catch up to the appropriate grade level in reading and writing. She said that he is in a setting of a 2:6 teacher student ratio with better individualized attention. The student received various support in different subject arears. She stated that overall, she believed that the "REDACTED" School was able to address her child's identified needs, and as such was an appropriate placement.
She observed the class of district school placement and noted that the class size was in the mid-twenties. She was also told that at the District school, the teachers would not slow down to accommodate her child's 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 did not appear and therefore did prove that it provided the child with a FAPE in the 2020-2021 school year, nor did it provide documentary evidence and witness testimony.
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 [REDACTED]. M.S. v. Board of Education of the City of Yonkers, 231 F.3d 96, 104 (2d Cir. 2000); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 94-29; Application of a Child with a Disability, Appeal No. 95-57. To meet that burden, the parents must show that the district offered an educational program designed to meet the student's special education needs. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 98-76; Application of a Child with a Disability, Appeal No. 94-29. A unilateral placement is only appropriate if it provides education instruction specifically designed to meet the unique needs of a handicapped child. Gagliardo v. Arlington Central School District, 489 F.3d 105 (2d Cir. 2007).
In this regard, I find that the parents have sustained their burden of demonstrating the appropriateness of the program at The REDACTED. I credit the description of the school's representatives and specialists as a school that is appropriately meeting the student's needs.
For all the above, I find that the parents have demonstrating the appropriateness of the program at The "REDACTED" School for the student. ISSUE 3 – Equities
The third prong of the Burlington decision requires a balancing of the equities in determining whether reimbursement should be awarded. The Individuals with Disabilities Education Act (IDEA) provides that an award of tuition reimbursement may be reduced or denied if notwithstanding their being advised that they should do so, parents neither inform the CSE of their disagreement with its proposed placement and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the school district with written notice of such information ten business days before such removal. 20 U.S.C. §1412(a)(10)(C)(iii).
Factors relevant to equitable considerations include whether the withdrawal of the student from public school was justified. The statutory provision serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a FAPE can be provided in the public schools. Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 (1st Cir. 2004); see also Frank G., 459 F.3d 356 (2nd Cir. 2006).
In terms of equities, there was no objection from the district, nor any evidence to suggest an issue. Under the circumstances, analysis of equities would not prevent an award for the student's tuition at "REDACTED". Tuition Reimbursement.
The Individuals with Disabilities Education Act (IDEA) empowers a hearing officer to grant relief that the hearing officer determines to be appropriate. §34 C.F.R. 300.516(c)(3). One such remedy is reimbursement of tuition and related expenses. Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 20 IDELR 532 (1993), School Committee of the Town of Burlington v. Dept. of Educ., Massachusetts, 471 U.S. 359 (1985). In Burlington, the Court found that Congress intended retroactive reimbursement to parents as an available remedy. "Reimbursement merely requires a [Local Educational Agency (LEA)] to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper [IEP]. See Carter. The mere fact that the state educational agency and/or the LEA has not approved the private school placement does not bar the parents from reimbursement. Id.
In this case, there was no IEP, but an IAP provided by the "REDACTED". Also, tuition reimbursement was awarded for the previous school year. Further, there was no demonstration by the district that the placement was inappropriate.
ORDER
The DOE shall reimburse the Parent for tuition paid and or balance remaining to "REDACTED" School for the 2021-2022 school year at a cost not to exceed $70,000.00.
IT IS SO ORDERED.
Dated: March 17, 2022
_Annette Hicks Gill
ANNETTE HICKS GILL, ESQ.
Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.
An Appealing party's request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for proceedings before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.
EXHIBITS
DEPARTMENT OF EDUCATION EXHIBITS
None
PARENT EXHIBITS
A. Due Process Impartial Hearing Request, 9/20/21, 7 pages
B. Notice of Placement (10-Day Notice), 8/25/21, 5 pages
C. Neuropsychological and Educational Evaluation, 4/2019, 15 pages
D. Enrollment Contract, dated 2/9/21, 7 pages
E. IEP, 2/1/21, 22 pages
F. Prior Written Notice of Placement, 7/14/21, 2 pages
G. Class Schedule, 2021-2022, 1 page
H. End of Year Report, 6/13/21, 16 pages