New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 563249 – NYC: 219024

FINDINGS OF FACT AND DECISION

Student's Name ^[1]: [REDACTED] ("Student")

Date of Birth: [REDACTED]

School District: [REDACTED]

Hearing Requested by: [REDACTED] ("Parent(s)")

Request Date/Date Complaint Filed: October 7, 2021

Date(s) of Hearing: December 16, 2021

January 11, 2022

March 2, 2022

April 12, 2022

Actual Record Closed Date: March 7, 2023

Date of Decision: March 8, 2023

Date of Distribution if Different than Decision Date: Hearing Officer: ANNETTE HICKS GILL

NAMES AND TITLES OF PERSONS WHO APPEARED

DECEMBER 16, 2021 *

For the Student:

[REDACTED], ESQ., Attorney

For the Department of Education:

NONE

NAMES AND TITLES OF PERSONS WHO APPEARED

JANUARY 11, 2022 *

For the Student:

[REDACTED], ESQ., Attorney

For the Department of Education:

[REDACTED], District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

MARCH 2, 2022 *

For the Student:

[REDACTED], ESQ., Attorney

For the Department of Education:

[REDACTED], PH.D., District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

APRIL 12, 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 10, 2022 *

For the Student:

[REDACTED] ESQ., Attorney

SHANELLE GILFORD, Parent Student

For the Department of Education:

[REDACTED], PH.D., District Representative

* All appearances were by video conference.

INTRODUCTION AND PROCEDURAL HISTORY

On or about October 8, 2021, this matter comes before the undersigned Impartial Hearing Officer ("IHO") on Parent's Due Process Complaint ("DPC") filed on or about October 7, 2021. (P1)^[2] 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 parent [REDACTED] (Parent) brought the instant action, arguing that the DOE had failed to provide her child with a free appropriate public education (FAPE) for the 2020-2021 school year. The DPC dated August 15, 2022, 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 the [REDCATED] school (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 exh. A).

At hearing on May 10, 2022, the District offered no documentary or oral evidence, and rested. The district did however, reserve its right to cross examination. The parent maintained that unilateral placement at [REDACTED] is appropriate to meet the Student's academic and social-emotional needs for the 2021-2022 school year and is reasonably calculated to enable him to receive educational benefits. (P exh. A). Furthermore, there are no equitable consideration which would bar funding of the placement.

The hearing convened May 10, 2022. The Student was represented by [REDACTED] & ASSOCIATES; and the district was represented by [REDACTED].

The parent's entered into evidence the following: P exh. A- Impartial Hearing Request dated October 7, 2021; P exh. B-10 Day Notice dated June 15, 2020; P exh. C- Enrollment Contract dated June 17, 2020; P exh. D- Schedule undated; P exh. E- Program Description undated; P exh. F-Remote Learning Program Description undated; P exh. G-[REDACTED] IEP dated April 20, 2020; P exh. H[REDACTED] Educational Assessment 20-21 dated January 15, 2021; P exh. I- Quarterly Report 20-21 dated June 25, 2021; P exh. J-Affidavit dated May 4, 2021; and P exh. K-Attendance undated. The District did not offer any documentary or testimony evidence. The IHO entered as IHO exh. I- IEP dated March 27, 2020.

Extensions were granted in accordance with regulations and the record closed on March 7, 2023, upon receipt of the remaining evidence.

JURISDICTION

The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, "IDEA"), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.

BACKGROUND

The student is a [REDACTED]-year-old boy with a disability classification of Multiple Disabilities and is nonverbal and non-ambulatory, travels to and from school in a wheelchair via school bus, communicates primarily through facial expressions, eye contact, body movement, and has started to use a picture symbol as indicated on the CSE IEP. (IHO exh. I1. An IEP developed by [REDACTED], further labeled his disability classifications as Traumatic Brain Injury (TBI), and his medical diagnosis is TBI, CHD (tetralogy of fallot), Cortical Visual Impairment (CVI), cardiac arrest, seizure disorder, respiratory disorder, failure to thrive; and G/J tube. (P exh. G1).

The CSE IEP recommended a special education program with 6:1:1, 8:1:1, and 12:1:1 ratio and related services. During the CSC meeting, the parent raised objections to the recommendations noting that her child needs maximum support in small group settings with a small student to teacher ratio among other things and said recommendation would not sufficiently support her child's health and academic needs. (IHO exh. I-23). The evaluation and recommendation of the [REDACTED] school is that the Student be placed in a 6:1:1 class in a New York State Education, non-public school in order to address the Student's highly intensive management needs which require a high degree of individualized attention and intervention as outlined in its IEP. (P exh. G15).

ISSUES

The issues to be addressed are whether the District provided the Student with a FAPE; whether the Parent reasonably and appropriately placed her child at the [REDACTED] school, in disagreement with the District's placement; and whether the equities allow for funding of the school and transportation for the 2020-2021 school year.

FINDINGS OF FACT

On March 27, 2022, the CPSE developed an IEP for the Student which recommended a special education program with 6:1:1, 8:1:1, and 12:1:1 ratio and related services (IHO exhibit I-23). According to the DPC, and the Parent's testimony, the parent has historically objected to this program and did so again at the meeting. The Parent alleges that the team did not conduct, secure, or rely on sufficient evaluative measures to make a proper determination of the student's needs. (P exh. A-2). The Parent testified that the Student has been attending the [REDACTED] school in question since 2019. (transcript p. 40.) The student has a diagnosis of traumatic brain injury, which has resulted in complex, significant, and life altering delays across all areas of development. His history includes cardiac arrest; seizure disorder; respiratory disorder; failure to thrive; feeding issues, for which he requires an assistive device. He has significant academic delays and intense management needs. He also has significant academic delays requiring an individualized, specialized, and therapeutic educational environment. [REDACTED] conducted extensive and individualized evaluations of the student (P exh. G). The parent testified that her son benefited from the program, and the Educational Assessment (P exh. H) and Functional Vision Assessment (P exh. I) establish that the program was equipped to deliver the services that were recommended for him through the evaluations conducted by the unilateral placement and that the Student was receiving educational benefit. The Parent cooperated with the CSE at each meeting, and participated to express her concerns about the recommendations which went unheeded. The Parent gave proper notice of her intensions to unilaterally place the child in the prior school (P exh. B). The parent is of very limited economic means as indicated through her testimony as well as the documentary evidence. The District has prospectively funded the tuition in the past. (P exh. A). The parent believed that recommendation of the CSE was inappropriate for her son, and as such she unintentionally placed him at [REDACTED]. After having notified the District that she disagreed with the program and that she was seeking further funding of the program, the District did not reassess, nor provide and alternatives.

CONCLUSIONS OF LAW AND ANALYSIS

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 for the 2020/2021, 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 [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 school Director.

For all the above, I find that the Parent has 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, I find that the Parent's unilateral placement was reasonable, and justified given the child's extensive needs. Furthermore, the Parent informed the CSE of her disagreement with its placement and gave proper notice. 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 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 District placement is not appropriate to meet the Student's needs, and that [REDACTED] is.

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.

I find that the Parent demonstrated through documentary and testimonial evidence that the unilateral placement was appropriate for the student for the 2020-2021 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 or 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 or offer an alternative program or placement. If find the Parent's action and the cost to be reasonable. Lastly, the District failed to demonstrate lack of cooperation on the Parent's part.

ORDER

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

1. The DOE shall directly refund and prospectively fund the student's tuition at the [REDACTED] school for the 2020/2021 school year.

2. The DOE shall also reimburse the Parent for transportation costs.

SO ORDERED.

DATED: March 8, 2023

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 appeals 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.

DOCUMENTATION ENTERED INTO THE RECORD

DEPARTMENT OF EDUCATION EXHIBITS

None

PARENT EXHIBITS

A. Impartial Hearing Request October 7, 2021 10 pages

B. Ten Day Notice June 15, 2020 3 pages

C. Enrollment Contract June 17, 2020 5 pages

D. Schedule Undated 5 pages

E. Program Description Undated 9 pages

F. Remote Learning Program Description Undated 9 pages

G. [REDACTED] IEP April 20, 2020 15 pages

H. [REDACTED] Educational Assessment 20-21 January 15, 2021 29 pages

I. [REDACTED] Quarterly Report 20-21 June 25, 2021 9 pages

J. Affidavit May 4, 2021 1 page

K. Attendance Undated 1 page

IHO EXHIBITS

I. CSE IEP March 27, 2021 23 pages

Footnotes

[1] Personally identifiable information is attached as Appendix A, "Redaction Identification Page," to this decision and must be removed prior to public distribution.

[2] Exhibits shall be referred to as follows: "P" for Parents' Exhibit; "D" for District's or Department's Exhibits; and "IHO" for Impartial Hearing Officer's Exhibits. Exhibits will be followed by the exhibit number and page numbers as needed and appropriate.