New York City Department of Education, Impartial Hearing Decision

NYSED # 565987 NYC# 221358

FINDINGS OF FACT AND DECISION

Case Number: 221358

Student’s Name: REDACTED

Date of Birth: REDACTED

District: redacted

CSE: redacted

Hearing Requested By: Parents

Dates of Hearing: January 5, 2022

February 22, 2022

March 29, 2022

April 25, 2022

May 26, 2022

July 11, 2022

July 20, 2022

August 16, 2022

September 20, 2022

November 10, 2022

Actual Record Close Date: December 23, 2022

Hearing Officer: Maria R. Dispenza, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 5, 2022

For the Student:

REDACTED, Esq. Parent Attorney

For the Department of Education:

REDACTED, Esq. DOE Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED FEBRUARY 22, 2022

For the Student:

REDACTED, Esq. Parent Attorney

For the Department of Education:

REDACTED, Esq. DOE Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 29, 2022

For the Student:

REDACTED, Esq. Parent Attorney

For the Department of Education:

REDACTED, Esq. DOE Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED APRIL 25, 2022

For the Student:

REDACTED, Esq. Parent Attorney

For the Department of Education:

REDACTED, Esq. DOE Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED MAY 26, 2021

For the Student:

REDACTED, Esq. Parent Attorney

For the Department of Education:

REDACTED, Esq. DOE Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED JULY 11, 2022

For the Student:

REDACTED Parent Attorney

For the Department of Education:

REDACTED DOE Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED JULY 20, 2022

For the Student:

REDACTED, Esq. Parent Attorney

For the Department of Education:

REDACTED DOE IHRO Representative

NAMES AND TITLES OF PERSONS WHO APPEARED AUGUST 16, 2022

For the Student:

REDACTED, Esq. Parent Attorney

For the Department of Education:

REDACTED DOE IHRO Representative

NAMES AND TITLES OF PERSONS WHO APPEARED SEPTEMBER 20, 2022

For the Student:

REDACTED, Esq. Parent Attorney

For the Department of Education:

REDACTED DOE IHRO Representative

NAMES AND TITLES OF PERSONS WHO APPEARED NOVEMBER 10, 2022

For the Student:

REDACTED, Esq. Parent Attorney

REDACTED Parent/Mother

For the Department of Education:

REDACTED DOE IHRO Representative

INTRODUCTION

On November 15, 2021, New York City Department of Education (DOE) appointed me to act as the impartial hearing officer (IHO) in a case brought under the Federal Individuals with Disabilities Education Act (IDEA) [20 USC §1415(f)(3)] (“IDEA”) by the parent (Parent) of REDACTED (REDACTED) for the school year 2020/21. The Parent requested the hearing by filing an impartial hearing request with DOE on or November 11, 2021. The DPC is carried under New York City (“NYC”) . The impartial hearing was held over a series of dates, to complete the record on November 10, 2022. The timelines have also been extended to allow the parties opportunity to fully prepare, secure witnesses and obtain transcripts. The record officially closed on December 23, 2022. A list of persons who appeared at the hearing and the documents entered into evidence is annexed hereto.

BACKGROUND AND POSITION OF THE PARTIES

REDACTED is a student known to the DOE for several years because of his learning needs. He is a student who has challenges related to neurological dysfunction, including issues in executive functioning, reading, writing and math as well as with his general age level maturity, social interaction and physical coordination (Exhibit C). REDACTED has required and has received special education support and programming in a highly specialized environment as his complex profile necessitated continued placement in a residential program (Exhibit B). The CSE convened on or about June 5, 2020 and recommended a 12:1:1 program in a community school setting with related services for the 2020/21 school year (Exhibits A and B). The Parent uncontrovertedly represents not receiving a placement notice for the 2020/21 school year. On or about August 25, 2020, Parent provided notice that REDACTED would be placed at REDACTED (REDACTED) if no appropriate program and placement was created and offered (Exhibit A). Lacking a response, the parents proceeded to place REDACTED at REDACTED and now seek reimbursement for the tuition for the entirety of the 2020/21 school year (Exhibit B, T @ 57-58).

At the hearing, the DOE formally conceded to failing to provide REDACTED with a free and appropriate public education (FAPE) for the 2020/21 school year (T @ 45, 54) and opted not to submit any documentary evidence, present any witnesses or cross-examine any of Parent’s witnesses (T @ 58).

The Parent alleged: (1). the DOE failed to issue a placement notice prior to the start of the 2020/21 school year; (2). the DOE recommended program was not appropriate and not calculated to confer educational benefit; (3). the CSE failed to rely or obtain necessary evaluative materials for the development of the IEP; and (4). the IEP failed to contemplate remote learning. The Parent maintains that placement at REDACTED was appropriate for REDACTED and was reasonably calculated to confer educational benefit and that equitable considerations weigh in their favor. In an effort to support their position, the parents presented twenty-two (22) pieces of documentary evidence (Exhibits A–V), which included the direct testimony of two witnesses: REDACTED, the Assistant Head of School at REDACTED (Exhibit V) and REDACTED, REDACTED’s mother (Exhibit U).

FINDINGS OF FACT AND DECISION

The Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) was enacted with the primary purpose to ensure that students with disabilities have available to them a free and appropriate public education (FAPE) (20 U.S.C. § 1400[d][1][A]; see Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]; Bd. of Educ. v. Rowley, 458 S. Ct. 176, 179-81, 200-01 [1982]; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [2d Cir. 2006]). It is clear that the legislative intent of 20 US Code Section 1412 of the IDEA is to provide a FAPE to all children with disabilities so that these individuals may ultimately lead productive independent lives as adults, to the maximum extent possible (20 U.S.C. Sx 1400[d][1][A]; see Mrs. W v. Tirozzi, 832 F.2d 748 [2nd Cir. 1987]. A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.17; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.22). An IEP is designed as a "written statement" that addresses the educational needs of a child with a disability (20 U.S.C. § 1401[14]; 34 C.F.R. § 300.22; 8 NYCRR 200.1[y]). At the beginning of each school year, a school district is required to have an IEP in effect "for each child with a disability in its jurisdiction" (20 U.S.C. § 1414[d][2]; 34 C.F.R. § 300.323[a]; see also Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 194 [2d Cir. 2005] (finding the district fulfilled its legal obligations by providing the IEP before the first day of school). The student's recommended program must also be provided in the least restrictive environment (LRE) (34 C.F.R. § 300.114[a]; 8 NYCRR 200.6[A][1]). A FAPE is offered to a student when the board of education (a) complied with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. at 176, 206, 207 [1982]). The IDEA directs that, in general, a decision by an impartial hearing officer or state review officer must be made on substantive grounds based on a determination of whether or not the child received a FAPE (20 U.S.C. § 1415[f][3][E][i]). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a FAPE to the child, or (c) caused a deprivation of educational benefits to the child (20 U.S.C. § 1415[f][3][E][ii]; see 8 NYCRR 2005[j][4][ii]). The IDEA mandates that a student with a disability be provided with a FAPE tailored to meet his unique needs and one that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas Cty. Sch. Dist., 580 U.S. ___, 137 S.Ct.988, 999 (2017). A focus on the particular child is at the core of the IDEA. Endrew F., 137 S.Ct. at 999. Under 20 U.S.C. Section 1414(d)(3)(A), the IDEA mandates an IEP team to consider a child’s strengths, weaknesses and deficiencies, as well as the results of the most recent evaluations of the child together with developmental and functional needs of the child. In order to determine the student’s requirements and needs, the team must review and consider evaluations, assessment and information provided by the child’s parents, teachers and service providers and thereon determine the type of program required for the child. A board of education may be required to pay for educational services obtained for a child by the child's parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim. (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; see also Frank R. and Dianne R. v. Bd. of Educ. of Hyde Park,459 F.3d 356 [2d Cir. 2006], cert denied, Board of Educ. of Hyde Park Cent. School Dist. v. Frank R.,2007 WL 2982269 [Oct. 15, 2007].

The case at hand is a tuition reimbursement case and is therefore governed by the holding of the U.S. Supreme Court in Burlington School Comm. v. Dept of Education (471 U.S. 359 [1985]). That case set forth a three-prong test for determining if tuition reimbursement is warranted: (1) were the services offered by the school district inadequate or inappropriate; (2) where the services selected by the parents appropriate; and (3) do equitable considerations support the parents’ claim. Recently enacted state legislation puts the burden of proof for the first prong on the school district and for the second prong on the parent (Chap. 583 of Laws of 2007).

Prong I:

An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the child’s needs, establishes annual goals and short-term instructional objectives which are related to the child’s educational deficits, and provides for the use of appropriate special education services to address the child’s special education needs. Application of a Child with a Disability, Appeal No 93-12; Application of a Child with a Disability, Appeal No 93-9; Application of a Child with a Handicapping Condition, Appeal No 92-7; Matter of Handicapped Child, 22 Ed Dept Rep 487, March 11, 1983. The SRO has found that allegations that are left unchallenged are deemed as true “unless found to be inconsistent with the evidence in the record.” Application of a Student with a Disability, 01-044 (SRO March 27, 2002). The DOE’s silence at hearing has the effect of conceding every point alleged by the parent against the DOE unless it is inconsistent with the hearing record. Id.

Herein, DOE conceded Prong I and therefore no further analysis is warranted as the Parents have met the first of the three Burlington/Carter criteria for tuition reimbursement.

Prong II:

Having determined that the DOE did not offer the student a FAPE for the 2020/21 school year, I now proceed to evaluating the appropriateness of the parents’ unilateral placement of the student at REDACTED. The parent’s failure to select a program approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Florence County Sch Dist Four v. Carter 510 U.S. 7 [1993]). The private placement need not employ certified special education teachers, Carter, supra. The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of the unilateral placement: “No one factor is necessarily dispositive in determining whether parents’ unilateral placement is reasonably calculated to enable the child to receive educational benefits. 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”. (Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).

REDACTED is described as “a boarding school for high potential young men grades 6-12 who face complex language-based learning challenges…..REDACTED is a very safe, nurturing, family-like environment with a 2:1 teacher to student ratio, whose focus is on working with students who have gaps in their learning and who have a diagnosed learning difference, AD/HD or Executive Function deficits…..REDACTED determines each student’s level of skill and need and place them in a small group right at that level of challenge. Through this kind of targeted instruction, information is put in a form students can access and the gap between their current ability and potential closes” (Exhibit D).

In the case at hand, I credit the uncontroverted evidence (Exhibits H-V) and testimony (Exhibits U and V) submitted by Parent and find it establishes that the placement at REDACTED was specifically designed to address REDACTED’s needs for the 2020/21 school year. The record reflects REDACTED provided a rich supportive environment that correlated well with REDACTED, that the curriculum was specifically tailored to meet REDACTED’s needs and that he received a highly individualized instruction that enabled him to make appropriate progress.

Based upon the foregoing, I find that the student made meaningful progress at REDACTED for the 2020/21 school year across the board: academically, socially and emotionally. The record reflects that REDACTED was a placement that was “specifically designed to meet the unique needs” of the student Frank G, supra and that REDACTED has made progress therein.

Prong III:

Having found REDACTED an appropriate placement, I now consider equitable considerations, the final criterion for a reimbursement award. In weighing the equities, “the critical consideration, as the Court sees it, is whether they have cooperated in good faith to attempt to develop an IEP to the maximum extent possible, Schaffer, supra. The DOE did not present any evidence or testimony regarding the equity considerations for the 2020/21 school year. All indications are that the Parent cooperated with the DOE and did not interfere in any way with the DOE’s obligation to provide a FAPE for the Student for the 2020/21 school year. Further, Parent provided the District with ten days’ notice about their concerns with the lack of an IEP and placement as well as their intention to unilaterally place REDACTED at REDACTED for the 2020/21 school year.

I find (1). that the DOE failed to offer the student a FAPE for the 2020/21 school year, (2). that the unilateral placement of the student at REDACTED was appropriate (3). that the program at REDACTED was “reasonably calculated” to provide REDACTED with meaningful educational benefits and (4). that equitable considerations weighed in favor of the parents’ request for reimbursement for all costs associated with the placement of the student at REDACTED for the 2020/21 school year.

ORDER

Therefore, it is hereby ordered that within thirty (30) days of receipt of this Order, the Department of Education shall reimburse the tuition and all fees associated with the student’s unilateral residential placement at the REDACTED for the 2020/21 school year. Total tuition and costs: $85,900.00 (Exhibit F). All reimbursements and direct funding shall be supported by the presentation of appropriate documentation.

Dated: January 4, 2023

Maria R. Dispenza

_________________________

MARIA R. DISPENZA, ESQ.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

PLEASE TAKE NOTICE

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 ON NOVEMBER 10, 2022

Parent:

• • Ten Day Notice, 08/25/20 – 2pp
• • Impartial Hearing Request, 11/11/21 – 4pp
• • Neuropsychological Evaluation, 05/24/19 – 18pp
• • REDACTED Program Description, undated -4pp
• • Enrollment Agreement, 07/17/20 – 3pp
• • Tuition Statement, 09/09/21 -1pp
• • Student’s 8th Grade Schedules, undated -3pp
• • Academic Update Number 1 10/02/20 -3pp
• • Academic Update Number 2 10/20/20 – 3pp
• • Academic Update, 01/22/21 -4pp
• • Academic Update Number 3, 01/29/21 -4pp
• • Academic Update Number 4, 02/19/21 -4pp
• • Academic Update Number 5, 04/16/21 -3pp
• • Academic Update Number 6, 05/10/21 -3pp
• • Report Card for the Fall of 2020, Unidentified Date -4pp
• • Report Card for the Winter of 2021, Unidentified Date -4pp
• • Report Card for the Spring of 2021, Unidentified Date -6pp
• • Speech and Language Report (Winter of 2021), Unidentified Date -3pp
• • Speech and Language Report (Spring of 2021), Unidentified Date -2pp
• • Social Emotional Learning Support (Final Report – 2020/21), Undated -2pp
• • Affidavit of REDACTED, 12/02/22 -5pp
• • Affidavit of REDACTED, 10/28/22 -6pp