New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 565810 – NYC: 221196

FINDINGS OF FACT AND DECISION

NAMES AND TITLES OF PERSONS WHO APPEARED

AUGUST 16, 2022 *

For the Student:

[REDACTED], ESQ., Attorney

For the Department of Education:

[REDACTED], District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

SEPTEMBER 29, 2022 *

For the Student:

[REDACTED], ESQ., Attorney

[REDACTED], Parent Student

For the Department of Education:

[REDACTED], ESQ., District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

OCTOBER 19, 2022 *

For the Student:

[REDACTED], ESQ., Attorney

[REDACTED], Parent Student

For the Department of Education:

[REDACTED], ESQ., District Representative

[REDACTED], Consultant Hearing Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

NOVEMBER 21, 2022 *

For the Student:

[REDACTED], ESQ., Attorney

[REDACTED], Parent Student

[REDACTED], Director, Achievement Unlocked

For the Department of Education:

[REDACTED], ESQ., 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 13-year-old student whose parents [REDACTED] and [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 commenced on September 29, 2022, and District rested, effectively conceding Prong I however reserved the right to cross on Prongs II and III. The District did not offer any documentary evidence or testimony. A request was made by the Parent for more time to secure affidavits. It continued October 19, 2022, and a status conference was held because both parties requested adjournments. On November 21, 2022, the Parent and the Director of the school presented testimony is support of the claim. The District did not conduct a cross examination. 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 November 10, 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 [REDACTED] (School) because of the DOE's alleged failure to locate a program, public or private, that could implement the student's Individualized Educational Program (IEP). The parent noted that although an IEP meeting was held, the parent was never provided with a copy of the recommendations held within.

At hearing on September 29, 2022, the District rested. November 21, 2022, the Parent offered documentary evidence including affidavits and oral testimony supporting the claim. The District to not offer any cross-examination.

FINDINGS OF FACT

According to the Parent, the child is a student with a disability who has been known to the CSE because of his educational needs. An IEP meeting was held for the student on June 21, 2021, to develop a program for the 2021-2022 school year. At said meeting, the Parent discussed the child's needs and provided documentation regarding his profile and history. The parent disagreed with the program being proposed, however, those concerns went unheeded. Also, the parent was never given a copy of the IEP report. (Parent exhibit I).

The Parent filed a Notice of Unilateral Placement with the DOE August of 2021 giving notice of the DOE's failure to offer an appropriate program and placement for the child and her intent to send him to a unilateral program if the DOE didn't offer him something appropriate by the start of the school year. The District failed to offer the child an appropriate placement and the parent unilaterally placed him. (Parent exhibit I).

The school director, through affidavit and direct testimony stated that during the student's time at the school during the 2021-2022 school year, he grew substantially in his academic performance and growth in his academic skills, as reflected in his end-year report card in evidence. He grew in his self-skills, better advocating for what he needed. He was able to have a mature conversation about corrections to his work. He became better able to ask for help on problems that did not understand. He became comfortable completing more than the bare minimum work. The student still requires assistance navigating social relationships but make notable progress in this regard. He demonstrated skill in being a welcoming mentor to new students. He engaged socially with his peers in the game Magic the Gathering, accepting their help in learning how to play the game. His study skills increased, becoming more willing to do extra practice in academics. He grew in his ability to get right to work and complete his assignments independently and without prompting. His intelligence and knowledge showed through in his academics as he was able to come up with plenty of examples of real-world applications for the material presented. The student also demonstrated an increased willingness to have conversations about complicated subject matters. (Parent exhibit H).

The director further testified that overall, with the use of therapeutic supports and specialized interventions, the child has been able to make academic and emotional progress this 2021-2022 school year because the school is able to provide a small, structured learning environment that provides the support he needs. The School has assessed his needs and tailored instruction to address his learning and behavioral challenges. It is her professional opinion that the School was an appropriate placement for the student for the 2021-2022 school year. (See above).

The Parent presented a neuropsychological evaluation which found that the student would require a placement that would provide a high teacher to student ration in a small, emotionally supportive classroom to address his academic deficits employing multisensory teaching, structured scope and sequence, structure, and repetition throughout the day, and in an environment where he will be sufficiently challenged in light of his intellectual capacity. (Parent exhibit C).

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 Districted rested and did not present any evidence establishing the appropriateness of the district program. As such, I find the district failed to provide a FAPE for the student. ISSUE 2 – Appropriateness of Parent Placement

Analysis turns to the second prong of Burlington, under which the parents bear the burden of proving the appropriateness of the services obtained for the student. M.S. v. Board of Education of the City of Yonkers, 231 F.3d 96, 104 (2d Cir. 2000); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 94-29; Application of a Child with a Disability, Appeal No. 95-57. In order to meet that burden, the parents must show that the Kids First offered an educational program designed to meet Student's special education needs. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985). A unilateral placement is only appropriate if it provides education instruction specifically designed to meet the unique needs of a handicapped child. Gagliardo v. Arlington Central School District, 489 F.3d 105 (2d Cir. 2007).

In this regard, I find that the parents have sustained their burden of demonstrating the appropriateness of the program at the School. It was stated that the student made significant progress at this placement by the Parent, and the School director. And have demonstrated the appropriateness of the unilateral placement for the student. ISSUE 3 – Equities

The third prong of the Burlington decision requires a balancing of the equities in determining whether reimbursement should be awarded. The Individuals with Disabilities Education Act (IDEA) provides that an award of tuition reimbursement may be reduced or denied if notwithstanding their being advised that they should do so, parents neither inform the CSE of their disagreement with its proposed placement and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the school district with written notice of such information ten business days before such removal. 20 U.S.C. §1412(a)(10)(C)(iii). In this case, the Parent did inform the Factors relevant to equitable considerations include whether the withdrawal of the student from public school was justified. The statutory provision serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a FAPE can be provided in the public schools. Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 (1st Cir. 2004); see also Frank G., 459 F.3d 356 (2nd Cir. 2006).

In terms of equities, there was no objection form the district based on equities, nor any evidence to suggest an issue. Under the circumstances, analysis of equities would not prevent an award for the student's tuition at the school. 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 public-school placement was not able to meet the student's needs as demonstrated by the testimony of the parent and the neuropsychological report.

Should the hearing officer determine that the school district did not offer a FAPE to the student, the next inquiry is whether another 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 Scho. Dist. Four v. Carter, 520 zu.S. at 16.

5. Whether there was a lack of parental cooperation with the school district. Burlington, Carter, et al.

ORDER

1. The DOE shall directly fund the [REDACTED]'s tuition at the [REDACTED] school for the 2021-2022 school year at a cost not to exceed $88,000.00, upon submission of proof of attendance.

2. The DOE shall also reimburse and/or fund transportation costs.

IT IS SO ORDERED.

Dated: March 10, 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 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. Exh. Description Date Pages Request for Impartial Hearing 11/10/21 3 pages

B. Notice of Unilateral Placement 8/24/21 3 pages

C. Neuropsychological Evaluation 10/13-10/28/20 43 pages

D. [REDACTED] Payment Statement 5/26/21-5/13/22 1 page

E. [REDACTED] Attendance Record 9/13/21-6/27/22 1 page

F. [REDACTED] Enrollment Agreement 9/7/21 4 pages

G. [REDACTED] Report Card Spring 2022 11 pages

H. Affidavit of [REDACTED] Undated 10 pages

I. Affidavit of [REDACTED] Undated 3 pages