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CASE NUMBER: 567651 – NYC: 222742
FINDINGS OF FACT AND DECISION
NAMES AND TITLES OF PERSONS WHO APPEARED AT THE JANUARY 25, 2022 HEARING
For the REDACTED: None
For the Parents:
REDACTED, Advocate for Parent
NAMES AND TITLES OF PERSONS WHO APPEARED AT THE FEBRUARY 2, 2023 HEARING
For the REDACTED: REDACTED, Esq., District Representative
For the Parents:
REDACTED, Advocate for Parent
NAMES AND TITLES OF PERSONS WHO APPEARED AT THE FEBRUARY 22, 2023 HEARING
For the REDACTED: REDACTED, Esq., District Representative
For the Parents:
REDACTED, Advocate for Parent
REDACTED, Parent Parent
REDACTED, Principal of REDACTED
I. INTRODUCTION AND PROCEDURAL HISTORY
On December 15, 2021, I was appointed to conduct an impartial hearing pursuant to 20 U.S.C. §1415, regarding the special education program of REDACTED ("Student") brought by his parents ("Parent" or "Parents"). A pre-hearing conference was held on March 4, 2022, a pendency hearing was held on January 25, 2022, and status conferences were held on April 28, 2022, July 12, 2022, August 30, 2022, October 24, 2022, and December 20, 2022. Hearings were held on February 2, 2023 and February 22, 2023. The REDACTED ("REDACTED") was represented by REDACTED, Esq. and Parent was represented by EASE Advocates. During the course of the proceedings, the parties moved to extend the case compliance date in this matter, all in order to allow for settlement negotiations and an examination of all relevant witnesses and documents, and to complete the hearing. In considering those requests, I weighed the cumulative impact of the relevant factors and found that, in allowing for adequate time for such purposes, the delays in the resolution of the matter and the extensions of time for such purposes were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The hearing record was closed effective February 22, 2023.
II. BACKGROUND
Student presently attends the REDACTED. Parent filed a due process complaint on December 14, 2021, alleging a denial of a Free and Appropriate Public Education for the 2021-2022 school year, and requesting tuition at the REDACTED for the 2021-2022 school year. (Exh. A). There were two days of hearing. The REDACTED did not provide disclosure or present witnesses. Parent provided the testimony of a representative from the REDACTED and Parent during the second day of hearing. Tuition was provided pursuant to pendency from the date of the due process request until the end of the school year. Parent requests funding and/or payment of tuition for the remainder of the twelve-month 2021-2022 school year. (Exh. A).
III. DISCUSSION
FINDINGS OF FACT AND DECISION
FINDINGS OF FACT
An Individualized Education Program ("IEP") meeting was held on April 15, 2021. (Exh. A). The REDACTED did not defend FAPE and no further analysis is necessary here.
Student attended REDACTED for the twelve-month 2021-2022 school year. REDACTED is a small private school who services students with autism or other serious developmental delays. They use ABA and Dir/Floortime. It is a very restrictive school environment focusing on students that are moderately to severely impaired and uses 1:1 instruction. (Tr. 49 and Exh. M). Each child has his own individual academic book containing the student's individualized education plan designed for that student based on an assessment of overall skill development and desired reinforcement. Programming decisions are based on data collection. (Exh. M, page 2). The program addresses language and communication skills, social and play skills as well as academic, behavioral, vocational and independent living skills. (Exh. M, page 2).
There were approximately 44-48 students for the 2021-2022 school year. They offer occupational therapy, physical therapy, speech and language therapy, Floortime, assistive technology services, and counseling. They have reading specialist and typing specialist consultants, as well as remote Floortime consultants. (Tr. 50-1).
Student's schedule for the 2021-2022 school year included academics, floor time, yoga, social thinking and skills practice, typing, music therapy, PROMPT and related services. (Exh. F). Student was taught by a teacher with a master's degree in special education in a class of seven children, with six other adults, including teacher's assistant, classroom instructors, BCBA and related service providers. (Tr. 51-2). Student is nonverbal but uses an Assistive Technology device to communicate, iChat with word prediction. (Tr. 53-4). Intense training on the device was provided. Student needs a small class size, as he has no behavioral concerns, it was really important to get the attention that he needs. Student participated in adaptive physical education, soccer and swimming. (Tr. 57).
Parent was provided with home visits, coaching sessions, and trainings at the school. (Tr. 57-8). The school was in constant communication with the family. Progress reports are provided by the school three times per year, but data is constantly taken and analyzed. (Tr. 56-8). Staff meetings are held, and the principal met with the staff regarding Student. (Tr. 55).
Student made progress at the REDACTED during the 2021-2022 school year. (Exh. G and Exh. H). Academically, Student was reading and doing math, not at grade level, but making progress. (Tr. 53). Student made progress in his reading and math, started to improve in science, and problem solving in Floortime. He made the most progress in his communication skills. (Tr. 56-9). Parent reports considerable progress. (Tr. 64-5). Student had regressed during Covid but made progress with 1:1 instruction to put back in place what he lost. He made progress both with his communications, social skills and academics. (Tr. 64-6).
Parent signed an enrollment contract on June 14, 2021. (Tr. 64 and Exh. J). Parent showed her inability to pay tuition and seek reimbursement by submitting her 2020 tax return. (Exh. K).
Parent sent the required Ten-Day Notice on June 17, 2021. (Exh. D). There is nothing in the record to indicate a response. Parent filed the due process complaint on December 14, 2021. (Exh. A).
FAPE
The IDEA was enacted to "to ensure that all children with disabilities have available to them a free appropriate public education" ("FAPE") and to ensure that the rights of children with disabilities and parents of such children are protected." 20 U.S.C. sec. 1400(d)(1)(A), (B). See also, Forest Grove Sch. Dist. v. T.A., 557 U.S. 2330, 239-40 (2009). Under this statute is the requirement that the education to which access is provided be sufficient to confer some education benefit upon the disabled child. In deciding whether the school district provided as student a FAPE, the inquiry is limited to (a) whether the school district complied with the procedures set forth in IDEA; and (b) whether the student's IEP is reasonably calculated to enable the student to receive education benefit. Bd. of Educ. v. Rowley, 458 U.S. 176, 179-191 (1982).
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 (20 U.S.C. § 1415(f)(3)(E)(i)). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction." (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). In Endrew F. Douglas County School District RE-1, 580 U.S. ___, 137 S.Ct. 988 (2017), the Supreme Court held that in or order "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. Id. At *10. While the statute ensures an "appropriate" education, it does not guarantee "one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989) (citations omitted); see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 (citations omitted); see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008); Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412(a)(5)(A); 34 CFR 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR 200.1(cc), 200.6(a)(1); see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 (S.D.N.Y. 2010), aff'd, 486 Fed. App'x 954 (2d Cir. Oct. 18, 2012); E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 (S.D.N.Y. 2009).
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); Tarlowe v. New York City Bd. of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. 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), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320(a)(2)(i), (2)(i)(A); 8 NYCRR 200.4(d)(2)(iii)) and provides for the use of appropriate special education services. (see 34 CFR 300.320(a)(4); 8 NYCRR 200.4(d)(2)(v).
BURDEN OF PROOF
The burden of proof is on the REDACTED to show that the provided IEP provided FAPE, except in cases involving a unilateral placement, where the parent must prove the appropriateness of the unilateral placement. N.Y. Educ. Law § 4404(1)(c); see also Application of a Student with a Disability, Appeal No. 12-062; Application of a Student with a Disability, Appeal No. 11-053; Application of a Student with a Disability, Appeal No. 11-091.
The REDACTED did not provide witnesses or submit documents, and failed to make prima facie showing that an appropriate program was developed. Therefore, the REDACTED did not meet its burden of proof and Parent is entitled to relief.
APPROPRIATENESS OF THE PRIVATE SCHOOL
Once it is determined that the student has not been provided a FAPE, under New York law, the burden of proof shifts to the parents to show that their unilateral private placement was appropriate. A.D. v. Bd. of Educ. of City Sch. Dist. of City of New York, 690 F. Supp. 2d 193, 206 (S.D.N.Y. 2010) (citing Schaffer, 546 U.S. at 58; N.Y. Educ. L. § 4404(1)(c)). Under the IDEA, parents who unilaterally place their child in a private school do so at their financial risk. Individuals with Disabilities Education Act, §§612(a)(1)(A), 614(d).
A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her 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 (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, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE. (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).
The appropriateness of the parents' choice turns on whether the chosen school "is reasonably calculated to enable the child to receive educational benefits." Gagliardo v. Arlington Central School District, 489 F.3d 105, 112. A private placement meeting this standard is "one that is 'likely to produce progress, not regression.'" Id. (quoting Walczak, 142 F.3d at 130). The parents' choice must be "appropriate," "not . . . perfect." Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006). An appropriate private placement "need not meet state education standards or requirements." Id. (citing Carter, 510 U.S. at 14). Ultimately, the standard to be applied is to determine whether "[the] unilateral private 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 115. The Second Circuit in Frank G, 459 F.3d at 364-5 held: "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." the private school must provide an educational program which meets the student's special education needs (see Hardison v. Bd. of Educ., 773 F.3d 372, 386 [2d Cir. 2014]; Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129; Matrejek, 471 F.Supp. 2d at 419).
Initially, this school has been found to be appropriate in earlier school years. (Exh. C). The REDACTED has not appealed the determination of appropriateness of the placement in any case. Student attended the school pursuant to pendency for part of the school year, based on the Findings of Fact from previous years. (Exh. C). Parent has shown, through testimony, and documentation, that the REDACTED understands Student's unique educational needs and designed a program to address these needs. Therefore, Parent has met his burden of proof to show the appropriateness of the unilateral placement and is entitled to reimbursement and/or funding for his unilateral placement.
BALANCING OF THE EQUITIES
The IDEA also provides that reimbursement may be reduced or denied when parents fail to challenge 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]; see 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]). The final criterion for a reimbursement award is that the parents' claim must be supported by equitable considerations. (Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]). 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]; C.L., 744 F.3d at 840 [noting that "[i]mportant 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"]).
There is nothing in the record indicating a need to change the balancing of the equities. Parent attended the IEP meetings. Parent contacted the Committee on Special Education to voice concerns regarding the IEP and proposed placement and sent the required Ten-Day Letter. (Tr. 67 and Exh. B). There are no allegations of obstruction or that Parent was uncooperative. Therefore, Parent is entitled to the entirety of tuition for the 2021-2022 school year.
IV. ORDER
IT IS THEREFORE ORDERED THAT:
1. The REDACTED failed to provide Student a Free and Appropriate Public Education for the 2021-2022 school year.
2. The REDACTED shall fund tuition at the REDACTED for the 2021-2022 school year within thirty days of receipt of invoice and proof of attendance, less any payments made pursuant to pendency.
Dated: March 3, 2023
AUDREY DANIEL, ESQ.
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.
EXHIBITS ADMITTED AT HEARING
District
None.
Parent
ITEM NUMBER DATE DESCRIPTION NUMBER OF PAGES
A 12/14/21 Impartial Hearing Request 7 B 21/22 Advocacy Contract 1 C 04/26/19 Findings of Fact and Final Order 2 D 04/15/21 Individualized Education Program 24 E 06/17/21 Ten Day Notice 2 F 21/22 Class Schedule 1 G 21/22 Progress Report 14 H 03/25/21 Annual Review 18 I 09/13/22 School Affidavit 1 J 06/14/21 Enrollment Contract 2 K 2020 Parent 1040 U.S. Individual Income Tax Return 3 L 21/22 Attendance Record 1 M Program Description 8 Impartial Hearing Officer
None.