New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 562250 NYC: 218101

FINDINGS OF FACT AND DECISION REDACTED

NAMES AND TITLES OF PERSONS WHO APPEARED

MARCH 22, 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"., 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 a REDACTED -year-old student whose parents "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 March 22, 2022, and continued April 5, 2022, and May 3, 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 reimbursement for unilateral placement at the "REDACTED" because of the DOE's alleged failure to locate a program, public or private, that was appropriate. The DPCN referenced an Individualized Educational Program (IEP) dated January 27, 2021, but a copy of was not provided. However, the Parent maintained that there was a denial of FAPE and that the unilateral placement at "REDACTED" was appropriate.

At hearing on May 3, 2022, the District's representative did not present a case and rested. The Parent offered documentary evidence including affidavits in lieu of testimony.

FINDINGS OF FACT

The DPCN referred to an IEP that was dated January 27, 2021. (Parent's Exhibit A). Also, at the hearing on May 3, 2021, during his opening statement, Parent's counsel mentioned the same, however, a copy was not provided. (See transcript dated May 3, 2021, pp. 13-14). This hearing officer made a request for a copy of the IEP after the hearing; however, none was provided by the Parent nor the district.

On August 25, 2021, the Parent issued a Notice of Unilateral Placement for the academic year of 2021-2022, which stated the intention to place the child at "REDACTED" at the beginning of the academic year of 2021-2022 and to seek funding for said placement. (Parent's Exhibit B).

A clinical research feedback report dated August 22, 2016, recommended that a new IEP be made for the student. SETSS services were suggested noting that the student would continue to benefit from a supportive, small, and structured classroom for his behavioral and attentional difficulties, testing accommodations, and classroom modifications. The report also recommended further evaluations in various areas. (Parent's Exhibit C).

The affidavit of "REDACTED", the Director of the Upper Division at "REDACTED" School stated that the school has been a leader in the field of educating students with learning disabilities for almost 60 years. In addition, the student's education is impacted by challenges with academics, working memory, processing speed, executive functioning, language, and attention. During the 2021-22 school year, the student was in an advisory class that has 11 students, one special education teacher, and one assistant teacher. In addition to being placed in small classes, the student engages in a program that provides him with social-emotional strategies and academic instruction and support. The child receives special instruction in his classes including reading, writing, and math. The affidavit further stated that the student needed and has benefited from being in a specialized school that is dedicated to students with language needs. Also, the student is placed with appropriate peers at the school and that all his needs are being met. (Parent's Exhibit I).

An affidavit of the student's mother, "REDACTED" established that the student is bright but struggles with academics, working memory, processing speed, executive functioning language, and attention. The student has been diagnosed with Attention Deficit Hyperactivity Disorder ("ADHD"), Receptive/Expressive language Disorder, Auditory Processing Disorder; and a Language-Based Learning Disability, specifically, Dyslexia. (Parent's Exhibit J).

According to the mother, the student received services through the CPSE until he transitioned into P.S. 234 for kindergarten. He was then placed in an integrated Co-teaching ("ICT") class at P.S. 234. Despite receiving support, the student was not learning. The parents had the child evaluated and it was recommended that the student receive full-time instruction in a small, supportive, and highly structured classroom within a specialized school for students with language-based learning challenges. The parents placed the student at "REDACTED" from the 2013-2014 to the 2020-2021 school years. The mother further stated that the student continues to benefit from the small group size where he receives immediate and repeated feedback. She asserted that "REDACTED" has been able to provide the student with a highly individualized program that is based on his specific needs and has made progress. Specifically, he has made progress during the 2021-2022 school year in reading comprehension, reading fluency, decoding, writing, math, focusing, organizing, processing and self-advocacy. It was further asserted that the student's progress is due- in whole- to his placement at "REDACTED". Lastly, the mother stated that the district made a recommendation of placement on August 5, 2021, however she toured the placement and spoke with the administration and maintained that the placement would not be appropriate for Chase. (Parent's Exhibit J). Subsequently, the Parent issued the 10-Day Notice (Parent's Exhibit B).

The mother stated that tuition for "REDACTED" for the 2021-2022 school year is $72,725 (see Parent's Exhibit D), and the parents are making payments in accordance with the payment plan set up by the school. (See Parent's Exhibit E)

The record also contains a Mid-Year Report dated December 20, 2021 (Parent's Exhibit

H) and an end of the Year Report dated June 13, 2021, (Parent's Exhibit I) which indicates that the student is making significant progress at Stehpen Gaynor.

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. 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 REDACTED 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 "REDACTED". It was stated that the student made significant progress at this placement by the Parent, and this claim was supported by the MidYear and End-of-Year reports.

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, 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". 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 parent and the director at "REDACTED".

Should the hearing officer determine that the school district did not offer a FAPE to the 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.

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 at 16.

5. Whether there was a lack of parental cooperation with the school district. Burlington, Carter, nor the IDEA mentions this equitable consideration, but other courts have weighed parental cooperation in deciding whether to award reimbursement. See, e.g., C.G.v. Five Town Community Scho. Dist., 513 F.3d 279(1st Cir. 2008) (stating that reimbursement is contingent upon a showing that the parents diligently pursued the provision of appropriate services from the school district).

There is no indication that the Parent failed to provide the district with timely notice of the intent to enroll the student in "REDACTED". After considering the factors to be taken into consideration as listed above, I find that the Parent's unilateral placement was reasonable.

ORDER

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 $70,000.00, upon submission of proof of attendance.

IT IS SO ORDERED.

Dated: August 19, 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

None

PARENT EXHIBITS

DATE # OF PAGES

A. Due Process Impartial Hearing Request 9/20/21 3

B. Ten-Day Notice 8/25/21 2

C. Clinical Research Feedback Report 8/22/16 31

D. Enrollment Contract 2/16/21 7

E. Payment Affidavit 1/16/22 1

F. Daily Schedule 2021-2022 1

G. End of Year Report -2020-2021 6/13/21 16

H. Mid-Year Report 12/20/21 17

I. Affidavit in lieu of Direct Testimony –

"REDACTED" 4/21/22 6

J. Affidavit in lieu of Direct Testimony –

"REDACTED" 4/15/22 6