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CASE NUMBER: 565582 - NYC: 220995
FINDINGS OF FACT AND DECISION
Case Number: 220995
Student’s Name[1]: REDACTED (“Student”)
Date of Birth: REDACTED
School District: REDACTED
Hearing Requested by: REDACTED (“Parent(s)”)
Request Date/Date Complaint Filed: 11/5/2021
Date(s) of Hearing: 6/14/2022, 7/20/2022
Actual Record Closed Date: 1/3/2023
Date of Decision: 1/5/2023
Hearing Officer: Teril Holston, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON 6/14/2022
For the Student:
REDACTED, Esq.
For the Department of Education:
NONE
NAMES AND TITLES OF PERSONS WHO APPEARED ON 7/20/2022
For the Student:
REDACTED
REDACTED
REDACTED
REDACTED
For the Department of Education:
REDACTED
REDACTED
INTRODUCTION
This matter comes before the undersigned Hearing Officer at the request of Petitioners, the parents of the student, a REDACTED year-old school student classified as a student with a disability under the Individuals with Disabilities Education Act (“IDEA”); New York State Education Law; and the New York State regulations.
On November 5, 2021, Petitioners filed a Due Process Compliant (“Complaint” or “DPC”) against the New York City Department of Education (“NYC DOE” or “DOE” or “District”) alleging that the District failed to provide the student with a Free and Appropriate Public Education (“FAPE”) for the 2019-2020, 2020-2021, and 2021-2022 school years, in that the District failed to meet their Child Find obligations, and subsequently developed an IEP program that was not reasonably calculated to confer an educational benefit (P-A)[2]. The Petitioner is seeking tuition reimbursement/ direct payment for their unilateral placement of the student at Private School, a private program not approved by the Commissioner of Education for the education of students with disabilities for the 2021-2022 school year, door-to-door special education transportation, reimbursement for privately obtain OT services, and reimbursement for neuropsychological testing (Id.). Furthermore, the parent alleges that the equities support their claim for tuition reimbursement for the school year at issue (Id.).
In light of the foregoing and as more fully discussed below, I find that a) the DOE failed to meet its burden that it offered the student FAPE for the school years at issue, b) the Private School offers the student with specially designed instruction sufficient to meet student’s needs, c) the equities support the Parent, and d) the parent is entitled to reimbursement for OT services and a neuropsychological evaluation.
PROCEDURAL HISTORY
On March 25, 2022, the IHO 1 was appointed to conduct an impartial hearing.[3] The parties then held a status conference on May 5, 2022.
On June 14, 2022, the virtual impartial hearing on the merits of the DPC commenced and concluded on July 20, 2022 (See Hearing Transcripts). It was a closed hearing. On October 14, 2022, IHO 1’s appointment was rescinded due to his unforeseen death.
The undersigned was appointed on October 19, 2022. After email communication with the parties and review of the record, the parent’s representative forwarded to me all parent’s evidence entered into the record at the prior hearing dates and a closing brief (IHO-I). The District representative did not respond to any communication by the undersigned, and therefore, no District evidence or closing arguments were considered in this decision. Several extensions were granted to bring the case current and render a decision.
The Parent, through their representative, submitted to documents (Ex. P-A though P-S),[4] including the affidavit testimony of the parent, Psychologist, and Private School Director, in support of the Parent’s case. All of the documents were admitted into evidence without objection from the District.
At the second hearing date, IHO 1 limited the evidence the District was permitted to present due to the District’s failure to appear at the first hearing.
The record closed on January 3, 2022.
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.
FINDINGS OF FACT
After a full review of the record generated at hearing, I make the following findings of fact and determinations[5]:
The student was a REDACTED year-old 4th grader at Private School on the date of the hearing, classified as a student with a Learning Disability (P-S).
Prior to her enrollment at Private School, the student attended a public school (P-S). The student struggled in kindergarten and 1st grade (id.). During the 2019-2020 school year, the student was placed in an ICT classroom as a general education student. The student continued to display difficulties reading and writing, and her teacher recommended that the parents request intervention (id.). The parent submitted a request to have the student evaluated in March 2020, prior to the COVID-19 pandemic school closures (P-S; P-P). The parent followed up in August 2020. In the meantime, the student continued to fall behind (P-S).
For the 2020-2021 school year, the student was again placed in an ICT classroom as a general education student, with 15 students and 2 teachers (P-S). The parent again followed up on the evaluation in September 2020 (P-L; P-S). Subsequently, an IEP meeting was held on November 19, 2020 wherein the student’s academic, social, and emotional struggles were discussed, yet the District failed to classify the student as a student with a disability (P-S). The parent was advised that the CSE could reconvene if the parent obtained an evaluation (Id.). The parent obtained a neuropsychological evaluation that same month (P-C; P-R). After a thorough evaluation of the student, the psychologist diagnosed the student with Attention Deficit Hyperactivity Disorder (ADHD), Specific Learning Disability with Impairment in Reading, Moderate (deficits in phonemic awareness, reading comprehension, and reading fluency); and Specific Learning Disorder with Impairment in Written Expression, Moderate (deficits in handwriting, spelling, and sentence/ passage writing) (Id.). Specifically, the psychologist noted that the student has “significant difficulties with reading, writing, attention, fidgetiness, and executive functioning (e.g., organization, task transition, impulse control,” with a history of sensory issues (P-C-10). Although the student’s intellectual abilities are within the average range. The student’s poor attention and concentration negatively impact her capabilities (P-C). The student’s challenges with reading and writing are substantially documented in the evaluation (see P-C generally). The psychologist recommended the student engage in individual therapy, executive functioning coaching, extended time, small classroom setting, an Assisted Technology evaluation, specialized reading and writing interventions (Id.).
The parent secured a licensed occupational therapy provider to address the student motor skill and sensory deficits for 30 minute sessions, once per week, at a rate of $70-$75, beginning February 4, 2021 (P-E; P-S). On March 12, 2021, the psychologist provided an addendum to her original report to include further and updated information regarding the student, noting the student had been receiving Academic Intervention Services for reading and writing and OT (P-F).
The CSE reconvened on March 18, 2021, with the psychologist participating and the student was found eligible for special education services (P-S). Notwithstanding the student’s prior placement in the ICT classroom, the IEP recommended an ICT classroom and group OT services 1 x 30 (id.). [6] On June 15, 2021, the IEP team reconvened to review the student’s AT evaluation, now recommended AT services for the student (Id.). The parent expressed disagreement at each of the IEP meetings.
On August 24, 2021, the parent provided written notice of their intention to place the student at Private School (P-H).
The student has been attending Private School since the 2021-2022 school year. Private School is a small, specialized school serving students with learning disorders, in grades 2 through 6, utilizing multi-sensory Orton-Gillingham based instruction (P-O; P-Q). During the 2021-2022 school year, the school had 46 students and 18 staff members (P-Q). The student was placed in a classroom of 8 students, receives OT weekly for 45 minutes, meets with the school counselor weekly, individualized reading remediation four times per week 2:1 (id.). The student has made substantial progress in Private School and was promoted to the 5th grade (P-Q).
The parent signed an enrollment contract with Private School for the 2021-2022 academic school year on August 23, 2022 at the cost of $71,500; $28,000 of which the parent has already paid (P-G; P-Q; P-S).
CONCLUSIONS OF LAW
The Individuals with Disability Education Act (“IDEA”) establishes that students with disabilities are entitled to a free and appropriate education (“FAPE”).[7] A “free appropriate public education consists of educational instruction that is designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction.”[8] In order to demonstrate that a FAPE is being provided, the school district must show “that it complied with the procedural requirements set forth in the IDEA, and that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits.”[9] The student's recommended program must also be provided in the least restrictive environment with non-disabled peers.[10]
The parent seeks tuition reimbursement for the unilateral placement of the student in Private School for the 2022-2023 school year and the cost of related services. As set forth in Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); Sch. Comm. Of Burlington v. Dep’t of Educ., 471 U.S. 359 (1985) it is well established that a District may be required to reimburse parents for tuition payment to a private school if the services offered by the District were inadequate or inappropriate, the services selected by the parents were appropriate under the IDEA, and equitable considerations support the parent’s claim for reimbursement. Thus, consideration of such a claim has been expressed by a three-prong test: (1) was student denied FAPE; (2) the appropriateness of the Parent’s unilateral placement; and (3) a balancing of the equities.
The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE[11]. A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction."[12] “To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”[13] Further, “an IEP is not a form document” and it should be constructed after carefully evaluating the student.[14]
An appropriate program begins with an IEP which accurately reflects the results of the 1) student’s present levels of performance; 2) provides for the use of appropriate special education services to address the child's special education needs; 3) establishes annual goals which are related to the child's educational deficits; 4) identifies transitions services; 5) provides a start and end date to the recommended program and services; and 6) criteria and evaluation procedures for the measurement of goals.[15]
Special education services must be provided by the district in conformity with the student's IEP.[16] A denial of a FAPE occurs if the district deviates from substantial or significant provisions of the student's IEP in a material way and thereby precludes the student from the opportunity to receive educational benefits.[17]
However, school districts are not required to "maximize" the potential of students with disabilities[18], but must provide "an IEP that is 'likely to produce progress, not regression,' and... affords the student with an opportunity greater than mere 'trivial advancement'"[19]. The IEP must be "reasonably calculated to provide some 'meaningful' benefit"[20].
The burden of persuasion and proof is by the preponderance of the evidence standard, which requires a finding that the existence of a fact is more probable than not. When the evidence is evenly balanced, the party with the burden loses. The burden of proof at an impartial hearing is on the district, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement[21]. Accordingly, the burden of production and persuasion is on the District for the first and third prongs and on the Parent for the second prong.
ANALYSIS
- • Child Find The parent first alleges that the District failed to timely evaluate, classify, and provide the student an IEP and such failure denied the student a FAPE for the 2019-2020, 2020-2021, and 2021-2022 school years. This District failed to present any evidence to challenge the parent’s assertion, and therefore failed to meet its burden. Moreover, the record overwhelming demonstrates that the District failed to meet its obligations.
The purpose of the "child find" provisions of the IDEA are to identify, locate, and evaluate students who are suspected of being a student with a disability and thereby may be in need of special education and related services, but for whom no determination of eligibility as a student with a disability has been made (see Handberry v. Thompson, 446 F.3d 335, 347-48 [2d Cir. 2006]; E.T. v. Bd. of Educ. of Pine Bush Cent. Sch. Dist., 2012 WL 5936537, at *11 [S.D.N.Y. Nov. 26, 2012]; A.P. v. Woodstock Bd. of Educ., 572 F. Supp. 2d 221, 225 [D. Conn. 2008], aff'd, 370 Fed. App'x 202 [2d Cir. Mar. 23, 2010]; see also 20 U.S.C. § 1412[a][3][A]; 34 CFR 300.111; 8 NYCRR 200.2[a][1], [7]). The IDEA places an affirmative duty on State and local educational agencies to identify, locate, and evaluate all children with disabilities residing in the State "to ensure that they receive needed special education services" (20 U.S.C. § 1412[a][3]; 34 CFR 300.111[a][1][i]; Forest Grove, 557 U.S. at 245; K.B. v. Katonah Lewisboro Union Free Sch. Dist., 2019 WL 5553292, at *7 [S.D.N.Y. Oct. 28, 2019]; E.T., 2012 WL 5936537, at *11; see 20 U.S.C. § 1412[a][10][A][ii]; see also 8 NYCRR 200.2[a][1], [7]; New Paltz Cent. Sch. Dist. v. St. Pierre, 307 F. Supp. 2d 394, 400 n.13 [N.D.N.Y. 2004]). The "child find" requirements apply to "children who are suspected of being a child with a disability... and in need of special education, even though they are advancing from grade to grade" (34 CFR 300.111[c][1]; see 8 NYCRR 200.2[a][1], [7]; D.K. v. Abington Sch. Dist., 696 F.3d 233, 249 [3d Cir. 2012]; J.S. v. Scarsdale Union Free Sch. Dist., 826 F. Supp. 2d 635, 660 [S.D.N.Y. Nov. 18, 2011]). To satisfy the requirements, a board of education must have procedures in place that will enable it to identify, locate, and evaluate such children (34 CFR 300.111[a][1]; 8 NYCRR 200.2[a][1], [7]).
Because the child find obligation is an affirmative one, the IDEA does not require parents to request that the district evaluate their child (see Reid v. Dist. of Columbia, 401 F.3d 516, 518 [D.C. Cir. 2005] [noting that "[s]chool districts may not ignore disabled students' needs, nor may they await parental demands before providing special instruction"]; see also Application of the Bd. of Educ., Appeal No. 11-153; Application of a Student Suspected of Having a Disability, Appeal Nos. 11-092 & 11-094). A district's child find duty is triggered when there is "reason to suspect a disability and reason to suspect that special education services may be needed to address that disability" (J.S., 826 F. Supp. 2d at 660; New Paltz Cent. Sch. Dist., 307 F. Supp. 2d at 400 n.13, quoting Dep't of Educ., State of Hawaii v. Cari Rae S., 158 F. Supp. 2d 1190, 1194 [D. Haw. 2001]). To support a finding that a child find violation has occurred, school officials must have "overlooked clear signs of disability" and been "negligent in failing to order testing," or have "no rational justification for deciding not to evaluate" the student (Mr. P v. W. Hartford Bd. of Educ., 885 F.3d 735, 750 [2d Cir. 2018], quoting Bd. of Educ. of Fayette County, Ky. v. L.M., 478 F.3d 307, 313 [6th Cir. 2007]; see A.P., 572 F. Supp. 2d at 225). States are encouraged to develop "effective teaching strategies and positive behavioral interventions to prevent over-identification and to assist students without an automatic default to special education" (Los Angeles Unified Sch. Dist. v. D.L., 548 F. Supp. 2d 815, 819 [C.D. Cal. 2008], citing 20 U.S.C. § 1400[c][5]). Additionally, a school district must initiate a referral and promptly request parental consent to evaluate a student to determine if the student needs special education services and programs if a student has not made adequate progress after an appropriate period of time when provided instruction in a school district's response to intervention program (8 NYCRR 200.4[a]), see also 8 NYCRR 100.2[ii]).
Here, the parent asserts that the student was attending public school since kindergarten, where she has struggled. The record fully supports that that the District had reason to suspect that the student was a student with a disability requiring special education services. As explained herein, the hearing record evinces that the student exhibited signs of a disability that the district ignored or that gave the district reason to suspect that the student had a disability and required special education to address that disability. Moreover, the student’s teacher, instead of referring the student for an evaluation, told the parent to refer the student for an evaluation. Even after the parent made the request, the parent had to follow up 2 additional times, and the student wasn’t evaluated until 8 months later.[22] Furthermore, when the student was finally evaluated, the CSE erroneously found the student ineligible for special education services and erroneously told the parent to get her own evaluation of the student but failed to mention it would be at the public’s expense. If the CSE team felt additional evaluative data was necessary to evaluate the student, it is the District who bears the obligation to conduct such evaluations. The remedy for such a child find violation would typically be an order for the student to be evaluated, which has already occurred (see Adams v. Dist. of Columbia, 285 F. Supp. 3d 381, 393, 396-97 [D.D.C. 2018] [noting with approval the hearing officer's finding "that the directives of IDEA would be best effectuated by ordering an IEP review and revision, rather than prospective placement in a private school"]).
In addition, the parent contended that the evaluation conducted by the CSE was inadequate and failed to accurately describe assessments of the student's academic functioning, attention, focusing and organization skills. Further, the District failed to defend its evaluation of the student, nor did it provide an explanation as to why it disregarded the independent evaluator’s recommendations.
An initial evaluation of a student must include a physical examination, a psychological evaluation, a social history, a classroom observation of the student and any other "appropriate assessments or evaluations," as necessary to determine factors contributing to the student's disability. [23] Pursuant to 8 NYCRR 200.4(b)(4), a reevaluation of a student with a disability must be conducted by a multidisciplinary team or group that includes at least one teacher or specialist with knowledge in the area of the student's disability and, in accordance with 8 NYCRR 200.4(b)(5), the reevaluation must be "sufficient to determine the student's ability to participate in instructional programs in regular education and the student's continuing eligibility for special education." The CSE may direct that additional evaluations or assessments be conducted in order to appropriately assess the student in all areas related to the suspected disabilities.[24] Any evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent, that may assist in determining, among other things the content of the student's IEP.[25] In particular, a district must rely on technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors.[26] A district must ensure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, social and emotional status.[27] An evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and related services needs, whether or not commonly linked to the disability category in which the student has been classified.[28]
The IDEA defines a "child with a disability" as a child with specific physical, mental, or emotional conditions, including a learning disability, "who, by reason thereof, needs special education and related services."[29]
At the impartial hearing, while not required to do so, the parented demonstrated that the student qualified as a child with a disability under the classification of other health-impairment and learning disability. A child with a disability having an other health-impairment, pursuant to the statute, means "a child evaluated... as having... an other health impairment... and who, by reason thereof, needs special education and related services."[30] Other health-impairment, in turn, is defined as:
having limited strength, vitality, or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that--
(i) Is due to chronic or acute health problems such as asthma, attention deficit disorder or attention deficit hyperactivity disorder, diabetes, epilepsy, a heart condition, hemophilia, lead poisoning, leukemia, nephritis, rheumatic fever, sickle cell anemia, and Tourette syndrome; and
(ii) Adversely affects a child's educational performance.[31]
Learning disability is defined as “a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken, or written, which manifests itself in an imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculation,” including “perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia.”[32]
Here, the record overwhelmingly demonstrates that the student has a diagnosis of ADHD, Specific Learning Disorder- Reading, and Specific Learning Disorder- Writing,[33] that directly impairs her ability to focus in the classroom setting, requiring her to need extended time, OT, and additional reading and writing supports (P-C, see also P-E; P-F; P-H; P-J; P-K; P-L; P-P; P-Q; P-R; P-S). The District failed to conduct appropriate evaluations in all areas of the Student’s suspected disabilities and failed to create and implement an appropriate IEP reasonably calculated to enable the Student to make appropriately ambitious progress in light of the Student’s circumstances. Although not the Parent’s obligation, the Parent has made out a substantial case that the DOE denied the Student a FAPE, causing a deprivation of educational benefits, and the DOE has not met its burden. The District did not offer or provide “personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction."[34]
- • Prong I: FAPE As to Prong I of the Burlington/Carter standard, the DOE failed to meet its burden, presenting no documentary evidence or witnesses. The District offered no explanation as to how the CSE made its recommendation or how its evaluation appropriately describes the Student. In short, the District declined to “offer a cogent and responsive explanation for their decisions” in creating the IEP, and it is “through the IEP that “[t]he ‘free appropriate public education’ required by the Act is tailored to the unique needs of” a particular child”. Endrew F., 137 S.Ct. at 1002. Therefore, the undersigned is constrained to find that the District failed to offer the student a FAPE for all the school years at issue. Moreover, a review of the record herein establishes that the weight of the evidence supports the conclusion that the DOE failed to offer the Student an educational program reasonably calculated to offer FAPE for school years at issue.
- • Unilateral Placement In this case, as the District did not offer the student a FAPE for the school years issue, the next issue to determine is whether the Parent’s unilateral placement of the student at Private School was appropriate. The Parent argues that the Private School is an appropriate unilateral placement for the student as it provides instruction and services that are specifically designed to meet the student’s unique needs and that enable the student to make meaningful progress there. For the reasons below, the Parent’s unilateral placement was appropriate.
Parents need not show that the placement provides every special service necessary to maximize the student's potential.[35] When determining whether the parents' unilateral placement is appropriate, that placement must be “reasonably calculated to enable the child to receive educational benefits.”[36] A private placement is only appropriate if it provides education instruction specially designed to meet the unique needs of a student.[37]
A private school placement must be “proper under the Act”[38], i.e., the private school must provide an educational program which meets the student's special education needs.[39] A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement.[40] The private school need not employ certified special education teachers or have its own IEP for the student.[41] The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement:
“Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.”[42]
Moreover, where the failed to provide the student with a FAPE, the District is precluded from arguing that the testing, evaluations, or assessments introduced by the Parent’s and utilized by the unilateral placement are not sufficiently comprehensive evaluations of the student’s functioning levels and needs, as it is the District that retains the requirement to comprehensively evaluate the student.[43]
- • Student Needs In this case, the Parent submitted a neuropsychological evaluation and addendum, progress reports composed by the Private School professionals, as well as the affidavit testimony of the Private School Director and Principal, parent, and psychologist detailing the student’s needs (See Generally, P-C; P-F; P-J, P-K; P-O; P-Q; P-R; P-S).
- • Program The Private School is a private, specialized education program utilizing small class sizes and intensive Orton-Gillingham multi-sensory instruction to students with dyslexia and language based learning disorders. The Private School’s curriculum is based on each student’s strengths and weakness, goals geared toward improving functioning skills appropriate to their cognitive and developmental levels. The Private School offers its students a wide variety of related therapy services, including occupational therapy, speech therapy, and counseling (see generally P-O; P-Q; P-R; P-S). The student engaged in multi-sensory weekly group activities, small group ELA, and remediation several times per week (P-N).
- • Progress With respect to the student’s progress at Private School, a finding of progress is not required for a determination that a student's unilateral placement is adequate, but it is a relevant factor to be considered.[44] Here the parent detailed the progress that she has seen in the student since attending the Private School (P-S). The student’s reports from her teachers further demonstrate the progress she made towards reaching grade level in several subjects (P-J; P-K).
Based on all of the above, the parent has met the burden that the Private School is an appropriate placement for the student for the 2021-2022 school year as required.
The weight of the evidence demonstrates that the student’s individual special education needs were addressed by the private school and that the instruction offered was "reasonably calculated to enable the child to receive educational benefits."[45] Of note, the District offered no arguments concerning the appropriateness of Parent’s unilateral placement, nor challenged the equities in this action. Further, the District had the opportunity to cross-examine the Parent’s witnesses and did not object to any evidence entered into the record. Under these circumstances, I find that the Parent’s witnesses and documentary evidence are credible.
- • Equitable Considerations Equitable considerations are relevant in determining relief “because the authority to grant reimbursement [under the IDEA] is discretionary.”[46] “With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412 [a][10][C][iii]; 34 CFR 300.148[d]; E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school]; C.L., 744 F.3d at 840 [noting that "[i]important to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA"]).
Reimbursement may also be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to their removal of the student from public school, or by written notice 10 business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense."[47] This 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."[48] Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision.[49] Parents of students enrolled in private school are not exempted from 10-day notice requirements.[50]
The Second Circuit has recently reiterated that "[t]he ten-day notice requirement gives school districts an opportunity to discuss with parents their objections to the IEP and to offer changes to the IEP designed to address those objections—all before the parents enroll their child in a private school and file a due process complaint" and that "if parents unreasonably reject the school district's proposed changes to the IEP, or are otherwise uncooperative, courts and hearing officers are fully empowered to deny them reimbursement"[51]
However, the hearing officer must excuse the failure to provide timely notice if, in her discretion, she determines that the reason for the lack of timely notice is that the school district prevented the parents from providing the notice, the parents had not received the procedural safeguards notice advising of the requirement to provide notice, or compliance with the notice requirement would likely result in physical harm to the student.[52]
In the instant case, the parent provided the necessary Ten-Days’ Notice of their concerns with the District’s offer of a FAPE for the student for the 2021-2022 school year on August 24, 2021 (P-H). Therein, the parent detailed their specific concerns with the recommendations and provided notice of their intention to unilaterally place the student (Id.). There is nothing in the hearing record to demonstrate that the District responded to the parents.
By way of relief, Parent seeks direct funding and tuition reimbursement for the fees already paid to the Private School. The record establishes that Parent incurred an obligation to pay the Private School (P-G; P-M; P-Q; P-S).
Direct tuition funding is relief encompassed by the equitable remedial powers inherent in IDEA. See e.g. Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 406 (S.D.N.Y. 2011) (parents may seek direct funding in the instance in which, “due to a lack of financial resources, [parents of a student with a disability] have not made tuition payments but are legally obligated to do so”). I find that the unilateral tuition costs are extensive and may exceed the Parent’s ability to fund and await reimbursement, and the Parent filed a DPC. Equity demands that the DOE fund Student’s Private School tuition to the extent that the parent was unable to do so in this instance.
In balancing the equities, I find in favor of the Parent. To the extent possible, the Parent has participated in all aspects of the special education process. I find no issue with the reasonableness of the costs, including tuition, associated with the Private School and the Student is enrolled for the 2021-2022 school year (P-G; P-J; P-K; P-M; P-S).
CONCLUSION
Based on a review of the record and the findings mentioned above, the undersigned makes the following findings:
- • The District failed to meet its “Child Find” obligations, and as such the parent is entitled to an evaluation of the student for the 2021-2022 school year.
- • The District erred in failing to initially classify the student as a student with a disability.
- • The District failed to provide the student with a FAPE during the 2021-2022 school year.
- • The parent’s unilateral placement at Private School was appropriate and equitable considerations support an award of tuition reimbursement and direct funding for the 2021-2022 school year.
- • The parent is entitled to reimbursement of the neuropsychological evaluation and addendum.
- • The parent is entitled to reimbursement for independently obtained OT services.
- • The student is entitled to special education transportation to and from school.
- • The undersigned has reviewed the parent’s remaining contentions and find them to be either unnecessary to this decision, without merit, beyond my jurisdiction, too vague to be of use, or without sufficient basis in the record for a finding and award of relief. Accordingly, any relief not specifically discussed in this decision is denied, and all the Parent’s remaining claims not discussed herein are dismissed with prejudice.
ORDER
IT IS HEREBY ORDERED, that the REDACTED Department of Education shall directly pay Private School the balance for all tuition and fees for the student’s unilateral placement at Private School for the 2021-2022 school year and reimburse parents for all tuition and fees paid with 30 calendar days of this Order, with the total amount not to exceed $71,500;
IT IS FURTHER, ORDERED, that the REDACTED Department of Education shall reimburse the parents for the costs of the neuropsychological evaluation (dated January 7, 2021) and addendum (dated March 12, 2021) conducted by REDACTED in amount not to exceed $6,000 within 30 calendar days of this Order. For the purposes of this Order, I find the evidence submitted in Petitioner’s Exhibit B and Exhibit D to be adequate proof of payment entitling Petitioner to immediate relief. Furthermore, I find that the District has already been provided with adequate proof via this proceeding and so the District shall reimburse the parents within 30 calendar days from the date of this decision without any action on the part of Petitioner;
IT IS FURTHER, ORDERED, that the REDACTED Department of Education shall reimburse the parents for the costs of the private obtained OT services with REDACTED from February 4, 2021 to June 30, 2021 in amount not to exceed $1,490 within 30 calendar days of this Order. For the purposes of this Order, I find the evidence submitted in Petitioner’s Exhibit E and Exhibit S to be adequate proof of payment entitling Petitioner to immediate relief. Furthermore, I find that the District has already been provided with adequate proof via this proceeding and so the District shall reimburse the parents within 30 calendar days from the date of this decision without any action on the part of Petitioner;
IT IS FURTHER, ORDERED, that the REDACTED Department of Education shall provide special education transportation to and from school.
DATED: SO, ORDERED
1/5/2023 /s/ Teril Holston
Teril Holston, Esq., IHO
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.
IMPARTIAL HEARING OFFICER'S CERTIFICATION OF THE RECORD
I, Teril Holston, Impartial Hearing Officer in this matter, do hereby certify that the below Index of Exhibits included within this Findings of Fact and Decision itemizes the entire record before me. I further certify that the materials included in the record are either the original or a true copy of the original materials that were provided to me in this matter.
DATED: CERTIFIED BY
1/5/2023 /s/ Teril Holston
Teril Holston, Esq., IHO
APPENDIX A – REDACTION IDENTIFICATION PAGE
Student’s Name: REDACTED
Date of Birth: REDACTED
School District: REDACTED
Parent’s Name: REDACTED and REDACTED
Private School Director and Principal: REDACTED
Psychologist: REDACTED
Private School: REDACTED
APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD
PARENT EXHIBITS
Exhibit
Document
Date
Pages
A
DPC
11/5/2021
18
B
Invoice: Neuropsych Evaluation
12/30/2020
1
C
NeuroPsych Report
1/7/2021
23
D
Invoice: NeuroPsych Testing
1/5/2021
1
E
Invoice: OT Services
2/4/2021
2
F
NeuroPsych Addendum
3/12/2021
4
G
REDACTED Enrollment Contract
6/21/2021
1
H
TDN
8/24/2021
7
I Email: TDN Received 8/24/2021 1
J Fall 2021 Report Card 11/19/2021 9
K Spring 2022 Report Cart 3/17/2022 10
L Email requesting evaluation 9/11/2020 3
M Tuition Affidavit 6/1/2022 1
N 2021-2022 Class Schedule 6/2/2022 1
O REDACTED Program Description 6/2/2022 1
P Letter: Assessment Request 3/6/2020 1
Q Affidavit of REDACTED 6/8/2022 9
R REDACTED 6/9/2022 12
S Affidavit of REDACTED 6/22/2022 10 DOE’S EXHIBITS Exhibit
Document
Date
Pages
Enter information. Press tab key.
Enter information. Press tab key.
Enter information. Press tab key.
Enter # of pages. Press tab key.
IHO’S EXHIBITS
Exhibit
Document
Date
Pages
I
Parent’s Closing Brief undated
21
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 Parent Exhibit; “D” for the District’s or Department’s Exhibits; and “IHO” for the Impartial Hearing Officer’s exhibits.
[3] All information is upon information and belief, after review of hearing record developed by IHO 1.
[4] A more detailed list of exhibits is attached.
[5] Although only portions of the evidence are referenced herein, the testimony and documents were reviewed and considered, in full.
[6] Although referenced in the due process complaint, an IEP was not entered into evidence.
[7] See, 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 US 49 (2005).
[8] Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 188 (1982).
[9] See, Application of Child with a Disability, Appeal No. 05-061, quoting, Rowley at 206.
[10] See, Walczak v. Florida Union Free Sch. Dt., 142 F.3rd 119 (2nd Cir. 1998).
[11] U.S.C. § 1415[f][3][E][i].
[12] Rowley, 458 U.S. at 203.
[13] Endrew F. v. Douglas Cnty. Sch. Dist. RE-1, 137 S. Ct. 988, 999
[14] Id.
[15] See, Walzczak, supra; Id., Appeal No. 00-005.
[16] U.S.C. § 1401[9][D]; 34 CFR 300.17[d]; 20 U.S.C. § 1414[d]; 34 CFR 300.320.
[17] T.L. v. New York City Dep't of Educ., 2012 WL 1107652, *14 [E.D.N.Y. Mar. 30, 2012]; D.D-S. v. Southold Union Free Sch. Dist., 2011 WL 3919040, at *13 [E.D.N.Y. Sept. 2, 2011]; A.L. v. New York City Dep't of Educ., 812 F. Supp. 2d 492, 503 [S.D.N.Y. 2011]; A.P. v. Woodstock Bd. of Educ., 370 Fed. App'x 202, 205, 2010 WL 1049297 [2d Cir. Mar. 23, 2010]; Van Duyn v. Baker Sch. Dist. 5J, 502 F.3d 811, 821-22 [9th Cir. 2007]; Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 [5th Cir. 2000].
[18] Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998], at 132.
[19] Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130.
[20] Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192.
[21] Educ. Law § 4404[1][c]; see R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 [2d Cir. 2012].
[22] Although I am sympathetic to the District school closures due to the pandemic, the student continued to struggle and do poorly during remote school and there is no indication in the record that the school made any attempts to even schedule an evaluation absent the parent’s multiple requests.
[23] NYCRR 200.4[b][1]
[24] NYCRR 200.4[b][3]
[25] U.S.C. § 1414[b][2][A], [B]; 34 CFR 300.304[b][1][ii]; see Letter to Clarke, 48 IDELR 77 [OSEP 2007]
[26] U.S.C. § 1414[b][2][C]; 34 CFR 300.304[b][3]; 8 NYCRR 200.4[b][6][x]
[27] U.S.C. § 1414[b][3][B]; 34 CFR 300.304[c][4]; 8 NYCRR 200.4[b][6][vii]
[28] CFR 300.304[c][6]; 8 NYCRR 200.4[b][6][ix]; see Application of the Dep't of Educ., Appeal No. 07-018
[29] U.S.C. § 1401[3][A]; Educ. Law § 4401[1]
[30] CFR 300.8[a][1]
[31] CFR 300.8[c][9]; see 8 NYCRR 200.1[zz][10]
[32] see 8 NYCRR 200.1[zz][6]
[33] Also known as Dyslexia
[34] Rowley, 458 U.S. at 203.
[35] . Frank G. v Bd. of Educ., 459 F.3d 356, 364-65 (2d Cir. 2006)
[36] Id.; see Gagliardo, 489 F.3d at 115.
[37] U.S.C. § 1401[29]; 34 CFR 300.39[a][1]; Educ. Law § 4401[1]; 8 NYCRR 200.1[ww]; Rowley, 458 U.S. at 188-89.
[38] Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370
[39] See, Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129.
[40] Carter, 510 U.S. at 14
[41] Id.
[42] Gagliardi, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65.
[43] see 34 CFR 300.305[c]; 8 NYCRR 200.4[b][5][iii]; A.D. v. Bd. of Educ., 690 F. Supp. 2d 193, 208 [S.D.N.Y. 2010] [finding that a unilateral placement was appropriate even where the private school reports were alleged by the district to be incomplete or inaccurate and finding that the fault for such inaccuracy or incomplete assessment of the student's needs lies with the district]; see also Application of the Dep't of Educ., Appeal No. 21-194; Application of the Dep't of Educ., Appeal No. 20-131; Application of the Dep't of Educ., Appeal No. 18-125; Application of a Student with a Disability, Appeal No. 180-049; Application of a Student with a Disability, Appeal No. 15-076; Application of a Student Suspected of Having a Disability, Appeal No. 15-038; 17 Application of a Student with a Disability, Appeal No. 14-033; Application of a Student with a Disability, Appeal No. 14-028; Application of a Student Suspected of Having a Disability, Appeal No. 14-003; Application of the Dep't of Educ., Appeal No. 13-198; Application of the Dep't of Educ., Appeal No. 13-072; Application of a Student with a Disability, Appeal No. 12-027
[44] Gagliardo, 489 F.3d at 115, citing Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26-27 (1st Cir. 2002)
[45] Frank G., 459 F.3d at 364.
[46] Frank G., 459 F.3d at 363-64 (quoting, Burlington, 471 U.S. at 374).
[47] U.S.C. § 14129(a)(10)(C)(iii)(I); see 34 CFR 300.148(d)(1)
[48] Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 (1st Cir. 2004).
[49] Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 (1st Cir. 2004); Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 (6th Cir. 2003); Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 (1st Cir. 2002); see Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68).
[50] S.W. v New York City Dep't of Educ., 646 F. Supp. 2d 346, 361-63 (S.D.N.Y. 2009).
[51] Bd. of Educ. of Yorktown Cent. Sch. Dist. v C.S., 990 F.3d 152, 171 (2d Cir. 2021).
[52] See 20 U.S.C. § 1412(a)(10)(C)(iv); 34 C.F.R. § 300.148(e)(1)