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CASE NUMBER: 567717 - NYC: 222811
FINDINGS OF FACT AND DECISION
Case Number: 222811
Student’s Name: [REDACTED]
School District: [REDACTED]
Impartial Hearing Officer: Richard J. Zeitler, Jr.
Date of Filing: 12/15/2021
Hearing Requested by: [REDACTED]
Date of Hearing: 07/12/2022
Record Close Date: 07/13/2022
Date of Decision: 07/23/2022
Names and Titles of Persons Who Appeared June 16, 2022
For the Student
[REDACTED], Attorney
[REDACTED]
[REDACTED]
For the New York City Department of Education
No appearance
BACKGROUND
On December 15, 2021, the Parents, by and through the Parents’ Attorney, filed a due process complaint (DPC) against the New York City Department of Education (DOE or Department), on behalf of the Student, under Case No. 222811, pursuant to the Individuals with Disabilities Education Act (“IDEA” or the “Act”) and the New York State Education Law.[1]
The DPC asserts the following. The Student was denied a free and appropriate public education (FAPE) for the 2021-2022 school year after the Committee on Special Education (CSE) held an individualized education program (IEP) meeting on January 11, 2021, and, “[a]gainst the objections of all who know and work with” the Student, “the CSE made a recommendation for a SETSS [special education teacher support services] only program with related services within a large, frenetic, community school,” which would have “significantly reduce[d] the level of services that [the Student] had during the school year and that he continues to need, [and] without the appropriate evaluations or any documentation to justify such a material alteration” to the Student’s existing program.[2] The Parents rejected the recommendation of the CSE, and on August 25, 2021, they informed the CSE with a ten-day notice (TDN) letter that they would have not choice but to unilaterally place the Student at the Private School.[3] The Department never sent the parents a prior written notice (PWN) of the proposed changes to the Student’s services, or a school location letter.[4] The Parents now seek reimbursement of the tuition they paid for the 2021-2022 school year, as well transportation.[5]
PROCEDURAL HISTORY
On April 20, 2022, I was appointed impartial hearing officer (“IHO”) for this case to determine the claims in the DPC and conduct an impartial hearing.[6] On May 11, 2022, I conducted a pre-hearing conference with the parties.[7] On that day, I also issued an Order of Extension,[8] and followed it with a second Order of Extension on June 10, 2022.[9] The Due Process Merits Hearing was held on June 12, 2022.[10] The Department did not appear. At the hearing, the Parents’ Attorney relied upon eleven exhibits that were admitted without objection.[11] A list of the documentary evidence in this proceeding is appended to this decision.
FINDINGS OF FACT
None of the following was disputed, as the Department did not appear or otherwise present a case at the hearing. The Student is [REDACTED] years old, just completed the 12th grade, and has graduated.[12] He has a history and diagnoses of Developmental Language Disorder, Executive Function Deficit, and Anxiety,[13] and spent most of his school years in special education, including at the Private School from the 10th grade through the 12th grade.[14]
At a neuropsychological evaluation conducted in 2017, it was confirmed that the Student continued to struggle with “ongoing weaknesses” in “language functioning,” including with reading (word recognition and decoding in the 30-34th percentiles, substitution errors, and reading fluency, such as short sentences, in the 25th percentile) and with written expression (capitalization, punctuation, vowel combinations, and legibility within bounds).[15] The neuropsychologist concluded that the Student showed “solidly average intellectual functioning with some variability within and across cognitive domains” and “weakness... in executive and motor control, including graphomotor precision, self-monitoring, inhibitory control, flexibility, pacing of effort, organization, and gestalt processing,”[16] and recommended that the “school setting should provide multimodal and engaging learning experiences, direct instruction in the supporting skills... strategies for gathering key concepts from complex text and graduated supports until [the Student is] able to independently keep up with demands for organization and written outputs.”[17] The neuropsychologist recommended a classroom setting with “a high teacher-to-student ratio, using empirically supported instruction and intervention” and additional supports, including cuing strategies in class, “paraphrasing, story mapping, [and] graphic organizers [] to promote reading comprehension,” and outlines, templates, and notetaking assistive technology for writing.[18]
The Parent testified, as follows. She has [REDACTED] children, and while she is a “big proponent of public schools,” having sent most of her children to the New York City public school system “for many grades,”[19] and notwithstanding that she wanted the Student to stay in public school after special education services were recommended for him in Kindergarten and first grade,[20] she felt that the Student would be best served in a private special education program, which the Student took part of until and beyond the 8th grade.[21]
For the 2018-2019 school year – the Student’s 9th grade – the Student received special education at a high school for athletes in [REDACTED].[22] When he returned, the Parent attended an IEP meeting to determine the Student’s level of service for the 10th grade year.[23] The Parent recalled that the CSE recommended an integrated co-teaching (ICT) program, which she believed would place the Student in “a larger classroom in a larger public school setting, particularly in the high school... a lot of the public high schools are campus schools... [with] two, sometimes as many as four schools in one building... and I [had] some concerns about his ability to learn and be supported in that environment.”[24] She was also concerned about the lower graduation and college attainment rates at the recommended ICT school.[25] She decided to place the Student with Private School beginning with the 10th grade.[26]
In 2021, she attended the IEP meeting held by the Department in anticipation of the Student’s 12th grade.[27] At least one official from the Private School joined by telephone.[28] The Parent share her concern that the Student “had made great strides but... he was continuing to struggle with his processing delays, particularly in the areas of... writing and reading.”[29] She found it “confusing” that the IEP team recommended only SETSS for the Student, which she understood to mean that for “six hours a week... they would work with him on specific subject matter” in “a general ed[ucation] class with one teach with about probably 28 kids.”[30] The Parent disagreed with the Department’s placement program and chose to have him finish his 12th grade at the Private School.[31] She described the Private School’s “Jump Start” program as “massively instrumental in having [the Student] become a really engaged and confident learner,” and although “he was still struggling... he will be attending college in the fall” and the Parent believes that “without the support of the Jump Start program and the teachers at [the Private School], he would probably not be where he is now in terms of being a student.”[32] According to the Parent, the Jump Start program included one-to-one sessions twice per week, which gave the Student “an opportunity to really check in” and “sit down and discuss whatever lessons were coming up for the week” and “make a game plan” with the Special Education Teacher.[33] The Parent found that the support from the Special Education Teacher “really helped alleviate some of his anxiety through the course of a school week, where she would really just help him... make a plan... [and] feel less anxious.”[34] The Parent also felt that the Private School offered “a strong sense of community and support” where “students and the families are like-minded with similar goals” and “uplift each other,” which she found positive for the Student’s social and emotional difficulties.[35] In all, the Parent found that the Private School was appropriate for the Student and that, with it, he “learned some... great study habits from his teachers and the Jump Start program that [she] hope[s] will carry him into his next years at college.”[36] The Parent also produced the Student’s Special Education Teacher at the Private School, who submitted an affidavit and appeared for live testimony at the hearing. The Special Education Teacher Testified as follows. The Private School “utilizes a specific tracking system where students are grouped based on ability.”[37] The school “has a low student-to-teacher ratio” that “average[s] 12:1 in M[iddle]S[chool] and 15:1 in H[igh]S[chool]”[38] For the Student, his academic classes in 12th grade had approximately 12 students to one teacher.[39]
The Special Education Teacher is a “Jump Start Teacher,” which means she “focus[es] on metacognitive strategies to help build a student’s understanding of self as a learner and their relationship with their coursework” with goal that “they can better identify their strengths and weaknesses, improve their skills, and self-advocate.”[40] This is accomplished in two ways. First the Jump Start (JS) teacher “meets twice daily (once in the morning – 35 minutes – and once in the afternoon – 45 minutes)” with groups of 12 students in the Jump Start program.[41] “Additionally, JS students meet twice a week individually with their JS teacher for 40 minutes to focus on specific skills and more on the differentiated educational needs of the student.”[42] “Jump Start is not an academic class but is intended and implemented as academic support to continue the high level of differentiated instruction the student receives throughout the day” and it is “tailored to the individual needs of each student in each academic class.”[43]
During the 2021-2022 school year, the Student was assigned to the Special Education Teacher’s Jump Start group.[44] She found that “he struggle[d] to attend to the daily expectations of a high school curriculum,”[45] including executive functioning, attention, staying organized, self-monitoring, planning, time management, interpreting and understanding directions, and self-advocacy.[46] The Special Education Teacher utilized the two 1:1 sessions she had with the Student to “kind of come up with a, a work plan for the week, prioritize the assignments, as well as other academic skills.”[47] She described the morning and afternoon group sessions with the Jump Start students as “a guided study hall” where they “figur[ed] out what the students [would] work on in those sessions during our 1:1 pieces, and then I try – I keep them on task and work with them individually as I move around the room.”[48]
For the Student, she “spent a fair amount of time on writing specifically, working on his essays for English and history and doing some research for his projects.”[49] She would “tak[e] what he has in English and then – or history, and working [sic] with him on creating the outlines and... on editing... and making sure that the work that he’s doing matches the expectations of the teachers and that he understands the directions.”[50] Because of the Student’s “weaknesses... in executive functioning skills, particularly beginning and completing his assignments on time,” the Special Education Teacher took specific measures to address “metacognition and executive functioning skills,” including creat[ing] a weekly assignment sheet that is shared with his mother” and schedul[ing] meetings with teachers [to] make sure [he] has all the necessary materials to complete his work” and then “return[ing] to this weekly assignment sheet” during their second weekly 1:1 session “and evaluate the workplan and [his] progress.”[51] The Special Education Teacher also noted supports that are provided to the Student in the classroom during his academic lessons, including small class size, graphic organizers, repetition of key concepts, scaffolding information, prompting, redirection, refocusing, and returning to concepts learned previously.[52]
The Special Education Teacher is of the opinion that through Jump Start and the academic program, the Student “has made meaningful progress and has begun to internalize many of the strategies taught to him, allowing him to work more independently.”[53] The Student struggled with anxiety when presented with new assignments and projects; however, by “work[ing] on breaking down assignments into smaller pieces (chunking) so the whole task does not become overwhelming,” the Student “is much calmer and more productive.”[54] As for writing, the Private School utilizes “Judith Hochman’s Writing Revolution outlines that have been implemented throughout [the] curriculum” and “[r]epeated exposure and practice with this structured writing approach has helped [the Student] improve his writing skills.”[55] The Special Education Teacher also noted that the Student’s “self-advocacy skills are improving” as well as his pacing and time management.[56] Whereas his hard work sometimes “depletes his focus and attention to detail,” prioritization of his work “has led to [him] needing to ask for fewer extensions on his assignments.”[57] With the “progress in self-advocacy, executive functioning skills, and writing skills” the Special Education Teacher found the Private School to be “an appropriate placement for [the Student] for the 2021-2022 school year.”[58] The Parent also placed into evidence a copy of the enrollment contract with the Private School for the 2021-2022 school year, signed by the parents on April 6, 2021 and showing a tuition total charge in the amount of $86,762.50,[59] as well as an invoice showing that the tuition total was $500 less ($86,262.50), and that the parents paid this latter amount in total as of February 15, 2022.[60]
Upon my review of the testimony, I find that the witnesses were credible. Their testimonies were sufficiently detailed and consistent, both with the exhibits and with each other. I note also that the Department was not present and therefore offered nothing to challenge the veracity of the witnesses. Finally, I credit the remaining exhibits as well, as they are likewise relevant, reliable, consistent, detailed, and undisputed.
LEGAL FRAMEWORK
The IDEA and the New York Education Law require school districts to offer a FAPE to each child with a disability residing in their district who requires special education programs or services.[61] A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written IEP.[62] When the education district complies with the procedural requirements set forth in the IDEA, and when the IEP developed through those procedures is reasonably calculated to enable the student to receive educational benefits, a FAPE has been established.[63]
The U.S. Supreme Court has determined that a board of education may be required to pay for educational services obtained for a child by the child's parent, if (1) there is no FAPE, in that the services offered by the board of education were inadequate or inappropriate, (2) the services selected by the parent were appropriate, and (3) equitable considerations support the parent's claim.[64] These three prongs have become known as the Burlington/Carter standard in a tuition reimbursement case.[65] In line with the standard, school districts have the burden of proof, including the burden of persuasion and burden of production as to Prong 1, while the parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of proof as to the appropriateness of such placement in Prong 2.[66] The standard required is a preponderance of the evidence.[67]
As part of its Prong 1 case, the DOE is not required to show that it attempted to “maximize” the potential of students with disabilities.[68] Still, an IEP must include a statement of the student's present levels of academic achievement and functional performance, establish annual goals designed to meet the student's needs resulting from the student's disability and enable the student to make progress in the general education curriculum, and must provide appropriate special education and services.[69] Appropriateness means that the IEP accurately reflects the results of evaluations to identify the Student's needs,[70] and then provides for the utilization of sufficient special education services,[71] and then is properly implemented.[72] In order to demonstrate a FAPE, the Department must offer “an IEP that is ‘likely to produce progress, not regression,’ and... affords the student with an opportunity greater than mere ‘trivial advancement.’”[73] The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit.”[74]
If the Department proves that the recommended program in the IEP offers a free and appropriate education, the analysis is over, and the Student is not entitled to what is requested in the DPC. If, however, it is determined that the Department did not establish a FAPE, the burden shifts to the Parent to prove Prong 2. To accomplish this, the Parent must establish that the program they have selected is appropriate to meet their child’s needs.[75] While the unilateral placement must provide “educational instruction specifically designed to meet the unique needs of the student,”[76] it “need not meet the IDEA definition of a free and appropriate public education” or even “state education standards or requirements.”[77] Parents are not barred, for example, from an award of tuition reimbursement if the selected program does not employ certified special education teachers or develop its own IEP for the student.[78] In fact, 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.”[79] With respect to Prong 3, when deciding whether equities support the claim, including whether the remedy should be barred altogether or modified in some way, IHOs must consider a multitude of relevant facts. These can include whether the cost of the private education was unreasonable,[80] whether the parents failed to make their child available for evaluation by the district,[81] or whether actions taken by the parents were unreasonable.[82] The Second Circuit Court of Appeals has also looked at whether the parents should have availed themselves of needs-based scholarships or other financial aid from the private school, whether there was any fraud or collusion by the parent of the private school in generating the tuition, or whether the arrangement with the school was fraudulent or collusive.[83] “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.”[84] Equities have favored parents when they cooperate in good faith at all times with the DOE, including participating in the CSE meeting, visiting proposed placements, and notifying the district of unilateral placement.[85]
Specifically, as to notifying the DOE, reimbursement may be reduced or denied if the 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 ten business days before such removal. The notice must state that the parent is rejecting the proposed placement and must include their concerns, as well as their intent to enroll the student in a private school at public expense.[86] It is an important step, because the notice “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.”[87] In a case where "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,"[88] as the parents of students enrolled in private school are not exempted from ten-day notice requirements.[89]
It is against this backdrop that I analyze the admitted evidence, including the Parent’s unilateral placement and equitable factors. If the factors weigh in favor of the Parents, an award is warranted, including any related services requested. In considering an award, I am mindful that I have at my disposal “various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies,”[90] with the only limitations being that the remedy “be appropriate in light of the purpose of the Act,”[91] and that damage awards are not available under the IDEA.[92]
ANALYSIS
Prong 1 – FAPE In this case, the Department did not appear; nor did it present any witnesses or documentary evidence, including the IEP. The Department therefore failed in its burden to prove, by a preponderance of the evidence, that the program recommended by the District was “reasonably calculated to provide some ‘meaningful’ benefit.”[93] In addition, “the parent is entitled to a presumption as to the truth of the asserted facts underlying” the IDEA claims, although they are “not necessarily entitled to ‘default’ relief,” as issuing an award on a DPC “without further inquiry... is a disfavored outcome, even in cases where the district’s conduct in denying the student a FAPE and in failing to actively participate in the impartial hearing process is egregious.”[94] Thus, while I will avoid rendering a decision on the DPC alone, I note that in failing to appear, the Department offered nothing to dispute the Parent’s assertions that (1) the Department’s recommendation for the 2021-2022 school year of SETSS at a community school was inadequate,[95] (2) that “[t]he failure to recommend an appropriate program and provide a placement is tantamount to a denial of FAPE,”[96] and (3) that the parents had “no choice but to enroll [him] at [the Private School] and seek funding” reimbursement from DOE.[97] For the above reasons, I therefore find that the Department did not demonstrate it provided the Student with a FAPE for the 2021-2022 school year, and I turn to the Prong 2 and the appropriateness of the Parent’s chosen placement.
Prong 2 – Appropriateness of Unilateral Placement
Having determined that the Department did not offer the Student a free and appropriate education, I must next turn to the Parents, who “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.”[98] A “private placement is only appropriate if it provides ‘education instruction specifically designed to meet the unique needs of a [disabled] child.’”[99] The Parents rejected the recommendation of the CSE and instead enrolled the Student in the Private School. In support, the Parents offered into evidence the affidavit and live testimony of the Student’s Special Education Teacher at the Private School,[100] the neuropsychological evaluation,[101] student records from the Private School,[102] the contract and payment information for the 2021-2022 school year tuition,[103] and the testimony of the Parent.[104]
The description of the Private School and its program was consistent with the neuropsychologist’s recommendation that the Student needed a “a high teacher-to-student ration, using empirically supported instruction and intervention,”[105] in a “school setting [that] provide[s] multimodal and engaging learning experiences, direct instruction in the supporting skills... strategies for gathering key concepts from complex text and graduated supports until [the Student is] able to independently keep up with demands for organization and written outputs.”[106] The Special Education Teacher also described the many supports provided to the Student during the 2021-2022 school year, both in the classroom during his academic lessons (small class size, graphic organizers, repetition of key concepts, scaffolding information, prompting, redirection, refocusing, and returning to concepts learned previously),[107] as well as the “Jump Start” program, which strengthened his “metacognition and executive functioning skills.”[108] I have credited the witnesses’ testimonies, including the Special Education Teacher’s opinion that combined impact of the Private School’s academic classes in an 12:1 setting with the Jump Start program directly led to the Student’s “progress in self-advocacy, executive functioning skills, and writing skills.”[109]
While “evidence of academic progress... does not itself establish that the private placement offers adequate and appropriate education,”[110] a record of progress is relevant to the inquiries into whether “the placement provides educational instruction specially designed to meet the unique needs of a [disabled] child” and whether “the child... benefit[s] from instruction,”[111] which are both indicators of appropriateness. Given the degree to which the Private School’s program is designed to address the learning needs of students such as the Student, and the resulting academic progress shown by the Student this school year, all of which was undisputed by the Department, the parents’ evidence proves that the Student has benefitted from the Private School’s program, and that it was specially designed to address the Student’s unique needs. On this record, therefore, I conclude that the placement chosen by the parents was appropriate to meet their child’s needs,[112] and that Prong 2 of the Burlington/Carter analysis is satisfied.
Prong 3 – Equitable Considerations
Finally, I must weigh pertinent equitable factors. The parents introduced evidence that the Parent attended the IEP meeting held by the Department in anticipation of the Student’s 12th grade,[113] where she shared her concern that the Student “had made great strides but... he was continuing to struggle with his processing delays, particularly in the areas of... writing and reading.”[114] The Parent thereafter issued a timely ten-day notice, on August 25, 2021, wherein she informed the Department of her disagreement with the CSE’s recommendation of a SETSS-only program with related services in a community school, and her notice that she “reject[ed] this program as being entirely inappropriate to address the extent of [the Student’s] needs” and that, “unless within ten days of receipt of this notice the District cures the procedural and substantive defects due to their failure to develop an IEP and recommend an appropriate placement, the parents will unilaterally place” the Student at the Private School “for the 2021-2022 academic year and sue the District for funding of this placement.”[115] I also found the Parent sincerely is a “big proponent of public schools,” having sent most of her children to the New York City public school system “for many grades,”[116] and that it had been her desire for the Student to attend public schools but for the fact that the Department’s recommended programs had not been sufficient over many years.[117]
Nothing in the record before me indicates that “the parents obstructed or were uncooperative in the school district’s efforts to meet its obligations under the IDEA.”[118] In fact, the evidence reflects that the Parent was cooperative with the Department throughout the process, which is “[i]mportant to the equitable consideration[s]” analysis,[119] and works to balance the equities in the Parent’s favor.[120] There is also no evidence of fraud or collusion,[121] and no allegations or evidence that the base tuition amount was unreasonable.[122] I also note that even though the parents signed the 2021-2022 school year contract with the Private School on April 6, 2021,[123] they were protected by a clause stating that “if the student attends a public school recommended by their school district” and the Private School “is notified in writing by no later than September 1, 2021 of the Parent(s)’... intent to accept the public school placement[,]” the Private School would “refund all tuition payments” less the deposit.[124] Thus, to the extent the April 2021 contract held a seat for the Parent’s child while the Department still had time to develop an IEP with an appropriate program for the Student, I do not find the Parent’s risk of losing her deposit if she chose the Department’s program by September 1, 2021 evidence of a predetermination on the Parent’s part for a private education at public expense. Therefore, on this record, and taken in their totality, the equitable considerations favor the Parent and do not favor the Department. I therefore find that the third prong of the Burlington/Carter standard has been established for the Parent, and that remedies are therefore warranted in this case.
Remedies
Tuition The Parent offered into evidence proof of the cost of tuition for the 2021-2022 school year,[125] as well as an affidavit from the Private School confirming that it received from the Student’s parents at total of $86,262.50 between April 19, 2021, and February 15, 2022, for the 2021-2022 school year.[126] Given that the Parents have satisfied the Burlington/Carter test, which allows for the reimbursement of tuition paid, I find that the Parent shall be reimbursed for the entirety of the cost of tuition. I do not agree, however, that the amount listed as paid on the Private School’s affidavit is only for the cost of tuition, and the award must therefore be modified.
The Private School’s contract lists the cost of “Grade 6-12 Tuition” as “$84,562.50[.]”[127] It also lists two additional charges, “Graduation $1,000.00” and “Bookstore** $1,200.00[.]”[128] At the hearing, I noted that these charges added up to $86,762.50, and not the $86,262.50 listed on the Private School’s payment affidavit.[129] The Parent was not sure why there was a $500.00 discrepancy, and surmised that “it’s possible that there was a... like an overcharge one year and then they reduced the amount this year. I would have to do some additional research [be]cause I certainly wouldn’t wanna say that I know with certainty right now.”[130] More important that this discrepancy, however, is a lack of evidence justifying the $1,000.00 charge or the $1,200 charge as part of the 2021-2022 tuition. The $1,000.00 fee is defined only as a charge for “graduation” and nothing in the Parent’s documentary evidence or her testimony explains what a “graduation” fee means. I note as well that it is a separate line item from the “Grade 6-12 Tuition” and the Student was in the 12th grade and thus contemplated by that tuition line item. Without further evidence or an explanation as to what the $1,000.00 charge actually covered, I cannot and thus will not assume it is part of the tuition reimbursement the Department has to pay.
The $1,200.00 “bookstore” fee is likewise ambiguous. To the extent the cost of books and certain supplies might be properly covered as a tuition-related expense, the $1,200.00 here was not listed in the contract as an amount with which the Parent ultimately parted. There is a double asterisk (**) next to “Bookstore” and the notation next to the double-asterisk (**) states, “This is a mandatory deposit in your child’s Student Bookstore Account for your child to purchase books, uniforms, athletic clothing and supplies. MONEY NOT USED IN THE BOOKSTORE ACCOUNT WILL BE APPLIED TO THE FOLLOWING YEAR UNLESS A REFUND IS REQUESTED.”[131] Although the contract does not state how or whether such unused portions of the deposit are returned to parents upon graduation, and regardless of whether I can infer that would be the case, there was no testimony or other evidence offered to establish that any of this money was actually spent for the 2021-2022 school year. There is nothing in the record establishing that the Student required new books or school uniforms, or otherwise whether any or all of the $1,200.00 deposit was actually spent, before any or all of it might have been returned to the Parent. Without such evidence, I cannot and will conclude that it is a reimbursable amount. The only amount I will therefore award is the line item that is clearly the tuition fee, which was an amount clearly having been paid: $84,562.50. Because this amount is less than that listed on the affidavit of payment, the issue of the $500.00 discrepancy is moot and need not be considered further.
Transportation The hearing was held after the Private School ended its 2021-2022 school year on May 12, 2022.[132] Although transportation costs were not mentioned at the hearing, they were raised in the DPC.[133] To the extent the IDEA requires that a school district provide transportation for a child with a disability,[134] and to the extent that the Parent provided no evidence of a particularized or continuing need for transportation, or of a specific cost the Parent paid or other related loss warranting reimbursement, I find the Department responsible for transportation for the 2021-2022 school year only to the extent not already provided.
DECISION AND ORDER
Upon the foregoing, it is hereby,
Ordered, that the New York City Department of Education shall directly reimburse the Parents for the entirety of the tuition that the Parents paid for the cost of the 2021-2022 school year at the Private School, in the amount of $84,562.50; and it is further, Ordered, that the DOE shall make round-trip door-to-door special education transportation services available for the Student’s attendance at the Private School for the 2021-2022 school year, to the extent not already provided.
So Ordered.
Dated: July 23, 2022
Richard J. Zeitler, Jr. (signed electronically)
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.
DEPARTMENT EXHIBITS
Exhibit
Title
Date
Pages
1.
(None) n/a n/a
PARENT EXHIBITS
Exhibit
Title
Date
Pages
A Impartial Hearing Request 12/15/2021 5
B Ten Day Notice 08/25/2021 3
C [REDACTED] Contract 04/06/2021 4
D (Withdrawn) 03/19/2020 10
E [REDACTED] Student Schedule 2021-2022 1
F [REDACTED] Student Transcript 05/20/2022 1
G [REDACTED] Student Attendance 06/30/2022 1
H [REDACTED] Affidavit of Payment 10/26/2021 1
I [REDACTED] Neuropsychological and Educational Eval. 10/2017 19
J Affidavit of [REDACTED] 07/08/2022 8
K [REDACTED] Resume (undated) 2
L Updated Affidavit of Payment 03/09/2022 1 IHO EXHIBITS Exhibit
Title
Date
Pages
I
Pre-Hearing Conference Summary and Order
05/11/ 2022
2
II
Order of Extension
05/11/2022
1
III
Order of Extension 2
06/10/2022
1
Footnotes
[1] See 20 U.S.C. § 1415(f), and New York State Education Law §§ 4404(1) and 3602-c (2)(b)(1); see Ex. A.
[2] See id. at A-3 (emphasis removed).
[3] See Ex. B at B-2.
[4] See id.
[5] See id. at A-4.
[6] Impartial hearings are conducted pursuant to 20 U.S.C. §1415(f) and New York State Education Law §4404(1).
[7] See Ex. I.
[8] See Ex. II.
[9] See Ex. III.
[10] See Tr. at pp. 1 and 5.
[11] The exhibits are labeled A through L; however, Ex. D was withdrawn and the remaining exhibits were not relettered.
[12] See Tr. at pg. 56:5-6.
[13] See Ex. I-9.
[14] See Tr. at pp. 41:21 through 54:3.
[15] Ex. I-4 through I-7.
[16] Id. at I-8.
[17] Id. at I-10.
[18] Id. at I-10 through I-11.
[19] Tr. at pg. 45:10-13.
[20] Tr. at pg. 42:5-20, at pg. 44:15-25, and at pg. 45:18-23.
[21] Tr. 45:21 through 49:7.
[22] See Tr. at pp. 49:8 through 51:3.
[23] See Tr. at pg. 52:5-19.
[24] Tr. at pp. 52:20 through 53:5.
[25] See Tr. at pg. 54:12-24.
[26] Tr. at pp. 53:25 through 54:3, and pg. 60:3-21.
[27] See Tr. at pp. 56:7-57:5.
[28] See Tr. at pg. 57:14-15.
[29] Tr. at pg. 57:19-23.
[30] Tr. at pg. 58:1-14.
[31] Tr. at pp. 52:20 through 53:5.
[32] Tr. 60:22 through 61:4.
[33] Tr. at pg. 61:9-18.
[34] Tr. at pg. 63:2-7.
[35] Tr. at pg. 63:10-21.
[36] Tr. at pg. 64:1-7.
[37] Ex. J ¶ 6.
[38] Id.
[39] See Tr. at pg. 31:12-19.
[40] Ex. J ¶ 6.
[41] Id. ¶¶ 8 and 20.
[42] Id. ¶ 11.
[43] Id. ¶ 23.
[44] See id. ¶ 16.
[45] Id. ¶ 18.
[46] See id. ¶ 19.
[47] Tr. at pp. 26:22 through 27:2.
[48] Tr. at pg. 27:8-12.
[49] Tr. at pg. 28:3-5.
[50] Tr. at pp. 29:24 through 30:4.
[51] Ex. J ¶ 28.
[52] Id. ¶ 21.
[53] Id. ¶ 35.
[54] Id. ¶ 24.
[55] Id. ¶ 25.
[56] Id. ¶¶ 26-27.
[57] Id. ¶ 27.
[58] Id. ¶ 34-35.
[59] See Ex. C. The fee breaks down as $84,562.50 for basic tuition, a $1,000 for graduating seniors (as was the Student), and a $1,200 bookstore fee.
[60] See Ex. L.
[61] See 20 U.S.C. § 1412 (a)(1)(A); Education Law §§ 4402(2)(a), (b)(2).
[62] See 34 C.F.R. § 300.13.
[63] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
[64] School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); and Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993).
[65] See id.
[66] See NYS Educ. Law § 4404(1)(c).
[67] See 20 U.S.C. §1415(i)(2)(C)(iii); see also Walczak v. Florida Union Free Sch. Dist., 142 F.3rd 119 (2nd Cir. 1998).
[68] 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 (an “appropriate” education is “not one that provides everything that might be thought desirable by loving parents”).
[69] See generally, 34 CFR § 300.320(a) and 8 NYCRR § 200.4(d)(2).
[70] See 34 C.F.R. § 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at 6 (S.D.N.Y. July 3, 2008), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2]; 8 NYCRR 200.4[d][2][iii].
[71] See 34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9.
[72] See 8 NYCRR 200.4(e)(7); Application of a Child with a Disability, Appeal No. 08-087.
[73] Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130.
[74] Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192.
[75] See A.D. ex rel. E.D. v. Bd. of Educ. of City Sch. Dist. of New York, 690 F. Supp. 2d 193, 206 (S.D.N.Y. 2010) (citing Frank G., 459 F.3d 356 at 364).
[76] Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d. Cir. 2007).
[77] Frank G. v. Bd. of Educ., 459 F.3d 356, 364 (2d. Cr. 2006).
[78] See id. at 364 (citing Carter, 510 U.S. 7 at 14).
[79] Gagliardo, 489 F.3d at 112 (quoting Frank G., 459 F.3d at 364-65).
[80] See L.K. v. New York City Dep't of Educ., 674 Fed. App'x 100, 101 (2d Cir. Jan. 19, 2017).
[81] See 20 U.S.C. § 1412(a)(10)(C)(iii)(III).
[82] See id.
[83] See E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014).
[84] C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 840 (2d Cir. 2014).
[85] See Mr. and Mrs. A v. New York City Dep’t of Educ., 769 F. Supp.2d 403, 419 (S.D.N.Y. 2011).
[86] See 20 U.S.C. § 1412(a)(10)(C)(iii)(I).
[87] Bd. of Educ. of Yorktown Cent. Sch. Dist. v C.S., 990 F.3d 152, 171 (2d Cir. 2021).
[88] Id.
[89] See S.W. v New York City Dep't of Educ., 646 F. Supp. 2d 346, 361-363 (S.D.N.Y. 2009).
[90] See Doe v. East Lyme, 790 F.3d at 454.
[91] Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 454 (2d Cir. 2015) (citation omitted).
[92] See Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 (2d Cir.2002).
[93] Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192.
[94] Application of a Student with a Disability, Appeal No. 19-061, pp. 18-19 (Sept. 6, 2019) (citing Branham v. Gov’t of the Dist. of Columbia, 427 F.3d 7, 11-12 [D.C. Cir. 2005]).
[95] See Ex. A-3.
[96] Id.
[97] Id.
[98] Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d. Cir. 2007); see also M.S. v. Bd. of Educ., 231 F.3d 96, 104 (2d Cir. 2000).
[99] Gagliardo, supra., 489 F.3d at 115 (citing Frank G., 459 F.3d at 365 (quoting Rowley, 458 U.S. at 188-89)).
[100] See Ex. J; see also Tr. at pp. 22:14 through 40:10.
[101] See Ex. I.
[102] See Exs. E, F, and G.
[103] Exs. C and L. I note that Ex. H is of little value and thus given little weight, as it was superseded by the more complete information offered in Ex. L.
[104] See Tr. at pp. 40:16 through 77:25.
[105] Id. at I-10 through I-11.
[106] Id. at I-10.
[107] Id. ¶ 21.
[108] Ex. J ¶ 28.
[109] Id. ¶ 35.
[110] Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 (6th Cir. 2003).
[111] Gagliardo, 489 F.3d at 112 (quoting Frank G., 459 F.3d at 364-65).
[112] See A.D. ex rel. E.D. v. Bd. of Educ. of City Sch. Dist. of New York, 690 F. Supp. 2d 193, 206 (S.D.N.Y. 2010) (citing Frank G., 459 F.3d 356 at 364).
[113] See Tr. at pp. 56:7-57:5.
[114] Tr. at pg. 57:19-23.
[115] Ex. B-2.
[116] Tr. at pg. 45:10-13.
[117] Tr. at pg. 42:5-20, at pg. 44:15-25, at pg. 45:18-23), and at Tr. 45:21 through 49:7.
[118] C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 840 (2d Cir. 2014).
[119] See C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 840 (2d Cir. 2014).
[120] See Mr. and Mrs. A v. New York City Dep’t of Educ., 769 F. Supp.2d 403, 419 (S.D.N.Y. 2011).
[121] See E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014).
[122] See L.K. v. New York City Dep't of Educ., 674 Fed. App'x 100, 101 (2d Cir. Jan. 19, 2017).
[123] See Ex. C-4.
[124] See id. at C-3.
[125] See id. at C-1.
[126] See Ex. L-1.
[127] Ex. C-1.
[128] Id.
[129] Tr. at pg. 71:1-24.
[130] Tr. at pp. 71:25 through 72:14.
[131] Ex. C-1 (emphasis in original).
[132] See Ex. L-1.
[133] See id.
[134] See Donald B. by Christine B. v. Board of Sch. Commissioners of Mobile County, Ala., 117 F.3d 1371, 1374 (11th Cir. 1997) (internal citation omitted); see Education Law §§ 4401(1) and 4402(4)(a); see also Education Law § 4401(2), and 8 NYCRR § 200.1(ww).