New York City Department of Education, Impartial Hearing Decision

NYSED # 568413 / NYC # 223406

FINDINGS OF FACT AND DECISION

Student’s Name: REDACTED (“Student”)

Date of Birth: REDACTED

District: New York City Department of Education (“DOE” or the “District”)

Hearing Requested by: REDACTED, Esq., of the REDACTED, on behalf of REDACTE (the “Parents”) and the Student

Record Close Date: June 21, 2022

Hearing Officer: Randy Glasser, Esq.

On January 3, 2022, REDACTED, Esq., of REDACTED, filed a due process complaint (“DPC”) on behalf of the Parents and their child, the Student, regarding her special education program and services for the 2021/2022 school year, pursuant to the Individuals with Disabilities Education Act (the “IDEA”) (Parent Ex. “A”). This Hearing Officer was appointed as the Impartial Hearing Officer (“IHO”) on April 27, 2022, after the appointment of the previous Hearing Officer for this case was rescinded. A Hearing went forward for this matter on May 6, 2022 and June 14, 2022. REDACTED, Esq., appeared for the District on May 6, 2022, but no one appeared for the District on June 14, 2022. The Parents and Student were represented by REDACTED, Esq.

Lists of the appearances and documentary evidence submitted in this proceeding are appended to this Decision. The compliance date for this matter was extended to August 10, 2022 (IHO Ex. “II”).

BACKGROUND AND POSITIONS OF THE PARTIES

The Student is REDACTED (REDACTED) years old, classified as a student with Autism, and diagnosed with Autism Spectrum Disorder – Level 1, and the Associated Neurodevelopmental Conditions of a. Reading Disability (Comprehension and Reading Fluency) b. Math Learning Disability (Calculation, Applied Problems, and Math Facts Fluency) c. Written Expression Disability (Writing Samples, Spelling, Sentence Writing Fluency) and d. Anxiety (Parent Ex. “C”).

The Student’s Individualized Education Program (“IEP”), dated June 15, 2021, for the 2021/2022 school year recommends the following twelve (12) month special education program and services: Special 12:1+1 Class, thirty-five (35) times per week, one (1) period per session, along with group (of an unspecified size) counseling services, one (1) time per week, thirty (30) minutes per session, individual counseling one (1) time per week, thirty (30) minutes per session, group (of an unspecified size) occupational therapy two (2) times per week, thirty (30) minutes per session, group (of an unspecified size) speech language therapy two (2) times per week, thirty (30) minutes per session, and parent counseling and training one time per month, sixty (60) minutes per session (IHO Ex. “I”).

The Parents unilaterally placed the Student at the REDACTED (the “School”) for the 2021/2022 school year, for which they are now seeking tuition reimbursement/funding, and transportation from the Student’s home to the School (Parent Ex. “A”). The Parents also seek attorneys’ fees. However, at the hearing held on May 6, 2022, Parents’ counsel agreed to the fact that this IHO does not have the authority to order attorneys’ fees (Tr. 6-7).

The Student’s eligibility and classification are not at issue in this case.

FINDINGS OF FACT AND DECISION

A. Introduction: The IDEA provides that children with disabilities are entitled to a FAPE (20 U.S.C. § 1400 (d)(1)(A)). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensively written IEP (Id., 20 U.S.C. §1414(d); 34 C.F.R. § 300.17). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through, the IDEA's procedures, and is (c) reasonably calculated to enable the student to receive educational benefits. Board of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas County Sch. Dist., RE-1, 137 S. Ct. 988 (2017).

Decisions of impartial hearing officers must be on substantive grounds based on a determination of whether the student received a FAPE (8 NYCRR § 200.5(j)(4)(i)), except:

In matters alleging a procedural violation, an impartial hearing officer may find that a student did not receive a free appropriate public education only if the procedural inadequacies impeded the student’s right to a free appropriate public education, significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of a free appropriate public education to the parent’s child, or caused a deprivation of educational benefits. Nothing in this paragraph shall be construed to preclude an impartial hearing officer from ordering a school district to comply with procedural requirements under this Part and Part 201 of this Title 8 NYCRR § 200.5(j)(4)(ii).

Id. (Emphasis added.)

School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement (NYS Educ. Law § 4404(1)(c)).

• • The IDEA empowers a hearing officer to grant the relief he/she deems appropriate. 34 CFR §300.516(c)(3). One such remedy is reimbursement of tuition and related expenses. Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); Burlington Sch. Comm. v. Mass. Dep’t. of Educ., 471 U.S. 359, (1985). Notably, the mere fact that the state educational agency and/or LEA has not approved the private school placement does not bar the parents from reimbursement. Florence County Sch. Dist. Four v. Carter, supra.

the School (the “Principal”), REDACTED, the Student’s Head Teacher at the School (the “Student’s Teacher”), and the Parent.

The Principal’s testimony is set forth in her affidavit at Parent Ex. “T”. In addition, the Principal testified in relevant part regarding the related services the Student receives at the School (Tr. 40-43).

The Student’s Teacher’s testimony is set forth in Parent Ex. “U” and the Parent’s testimony in Parent Ex. “V”. In addition, the Parent testified at the hearing that he was not sure whether or not his total family gross income for 2022 would be more or less than their $95,000 total gross income for 2021 (Tr. 51), he has four (4) children (Tr. 52), that he is asking for transportation but not funding for such transportation, because the District has been transporting the Student to the School since the beginning of the 2021/2022 school year (Tr. 53-54), and even though he signed the enrollment contract with the School in March 8, 2021, there is an exit clause, meaning that he would gotten back 75% of the FIVE HUNDRED DOLLAR ($500.00) deposit if he cancelled the contract before September 15, 2021 because the District had recommended an appropriate placement (Tr. 55-56).

Since the District did not appear, there were no witnesses presented on its direct case or rebuttal witnesses.

B. Tuition Reimbursement: A board of education may be required to pay for educational services obtained for a child by the child's parent, (1) if 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 (Burlington Sch. Comm v. Mass. Dep’t. of Educ., supra; Florence County Sch. Dist. Four et al. v. Carter, supra; see also Frank G. and Dianne G. v. Board of Educ. of Hyde Park, 459 F.3d 356 (2d Cir. 2006), cert denied, Board of Educ. of Hyde Park Cent. Sch. Dist. v. Frank G., 2007 WL 2982269 (2007). Accordingly, the above-stated three (3) prong analysis (the “Burlington/Carter Criteria”) is applied to determine whether the board of education is required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents. Id.

The inquiry made pursuant to the first prong, may go beyond the appropriateness of the student’s IEP and/or placement and encompass other FAPE claims (see 20 USC §1412(a)(10)(C)(ii); 34 C.F.R. §300.148(a) and (c); Forest Grove v. T.A., 557 U.S. 230 (2009); P.C. Oceanside Union Free Sch. Dist., 818 F. Supp. 2d 516 (E.D.N.Y. 2011); Mr. N.C. v. Bedford Cent. Sch. Dist., 300 F. App’x 11 (2d Cir. 2009). To determine whether the school district made FAPE available to the student in a timely matter, Rowley’s two-part test, as modified by Endrew F. v. Douglas County Sch. Dist., RE-1, supra, for appropriateness should be applied. Specifically, the hearing officer must determine whether the school district complied with the procedural requirements of the IDEA and whether the IEP is reasonably calculated to enable the child to make appropriate progress in light of her circumstances. Id. “An appropriate educational program therefore begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services.” (See Application of the Dept. of Educ., Appeal No. 07-018 (2007)). Thus, the annual goals and short-term objectives should be consistent with, and relate to, the identified needs and abilities of the student. See Application of a Student with a Disability, Appeal No. 14-078 (2015) (citing 20 U.S.C. § 1414(d)(1)(A)(i)(II); 34 CFR § 300.320(a)(2)(i); 8 NYCRR § 200.4(d)(2)(iii)).

While the Second Circuit has emphasized that school districts must comply with a checklist of procedures for developing a student’s IEP, the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA. See A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 (2d Cir. 2009). Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies: (a) impeded the student’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 student; or (c) caused a deprivation of educational benefits to the student (20 U.S.C. §1415(f)(d)(E)(ii); 34 C.F.R. §300.513(a)(2); 8 NYCRR §200.5(j)(4)(ii)).

In the instant case, the DOE failed to put on a direct case, present rebuttal testimony, submit a written closing statement, or even appear at the second day of the hearing^[1] (see infra). As aforementioned, the DOE has the statutory burden of persuasion and production in this case, to show that the program and services offered by the DOE pursuant to the Student’s IEPs were adequate or appropriate in order to satisfy Prong I of the Burlington/Carter Criteria. Accordingly, the District failed to proffer sufficient documentary or any testimonial evidence or otherwise prove that it had offered the Student a FAPE for the 2021/2022 school year, e.g., whether it offered a program that “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas County Sch. Dist., RE-1, 137 S. Ct. 988 (2017).

The Parents presented credible testimony and evidence proving the District’s recommended program, including but not limited to why the 12:1+1 class is not appropriate for the Student, in that it does not address her needs (Parent Ex. “V” at ¶¶15-16).

As aforementioned, the District failed to put on a direct case or present rebuttal testimony. Consequently, since the hearing record is devoid of any persuasive evidence, arguments or statutory authority proffered by the District, which can adequately support a contention or otherwise negate the Parents’ allegations, it is this IHO’s finding, as discussed more fully infra that the District both procedurally and substantively denied the Student a FAPE, for the 2021/2022 school year.

Due to the DOE’s failure to satisfy the first prong of the Burlington/Carter criteria, the burden shifts to the Parents to prove that the unilateral placement was appropriate or proper. Burlington Sch. Comm., 471 U.S. at 369 and 370; see also Florence County Sch. Dist. Four et al. v. Carter, 510 U.S. at 15. In order to meet this burden, the Parents must establish, by a preponderance of the evidence, that the unilateral placement provides “educational instruction specifically designed to meet the unique needs of the student” (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d. Cir. 2007)). In this regard, the court in Gagliardo explained:

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.

Id. at 112 (quoting, Frank G., 459 F.3d at 364-65).

However, the private school placement “need not meet the IDEA’s definition of a free and appropriate public education” or “state education standards or requirements” (Frank G. v. Board of Educ., at 364). Moreover, the private placement need not provide certified special education teachers or an IEP. Parental placements are not subject to the same mainstreaming requirements as a school district placement. The private school placement must be reasonably calculated to enable the child to receive educational benefits, and must be likely to produce progress, not regression. Id.

In the instant case, the testimony and documentary evidence overwhelmingly support the Parents’ claim that the Student’s placement at the School provides her with educational instruction that is specifically designed to meet her unique special education needs, supported by such services that are necessary to permit her to benefit from instruction and established that the Student has, in fact, made meaningful progress at the School. In this regard the Student’s Teacher testified in relevant part regarding the Student’s areas of strength and needs and what she requires (Parent Ex. “U” at ¶5), the ELA, Math and Writing instruction received by the Student at the School, in a group made up of students who are at her skill level in each academic area (Id. at ¶8), how teachers differentiate curriculum at the School based on the needs and skill level of the students in their class or skill-based group and deliver instruction using multi-sensory approaches the individually goals developed for the Student, (Id. at 9, Parent Ex. “O”), how the Student has progressed in her ability to make inferences utilize place value to compare order and round number values and brainstorm, utilize Thinking Maps for various cognitive processes and write sentences that are more descriptive (Id. at ¶9), the therapeutic whole-group classes attended by the Student at the School that support her needs (Id. at ¶10), how the Student receives targeted support for her deficits in writing during her written and Writing Lab classes (Id. at ¶11), the 1:1 support received by the Student from the School’s Social Worker during the Connection Time period, which has helped her to effectively process social relationship and navigate emotions (Id. at ¶12), the assistive technology provided by the School to the Student which address her attentional needs (Id. at ¶13), and the “meaningful progress” the Student has made at the School during the 2021/2022 school year (Id. at ¶14).

The Principal testified in relevant part how the School creates goals to meet the Student’s individual needs and adapts curriculum accordingly (Parent Ex. “T” at ¶24; see also Parent Ex. “O”, the School’s Mid-Year Progress Report for the Student that contains in part the Student’s goals and progress e.g., pp. 3, 4, 5, 6,8, 10, etc.), and why the School is providing the Student with an appropriate program for the 2021/2022 school year (Parent Ex. “T” at ¶¶35, 37).

Finally, the Student’s Parent testified in relevant part regarding the meaningful progress the Parents have observed of the Student while attending the School during the 2021/2022 school year in reading, math, self-confidence, and advocacy skills, and why the School is appropriate for the Student (Parent Ex. “V” at ¶18; see also the School Mid-Year Report Card and Q3 Report Card that states the Student received between 91 to 98 in all of her classes at the end of the first semester of the 2021/2022 school year (Parent Ex. “O”, “P”). is providing is pro The determination of whether, or not equitable factors support a parent’s claim for tuition reimbursement hinges, in large part, on whether, the parent cooperated with the CSE. In the instant matter, the DOE failed to provide any evidence and/or raise any equitable factors, which would preclude or limit tuition reimbursement for the Parent’s unilateral placement of the Student at the School for the 2021/2022 school year. In addition, when the Parent called the Student’s recommended placement to schedule a tour, Mr. REDACTED directed them to a virtual tour online which focused on their mainstream program instead of the one the Student would attend (Parent Ex. “V” at ¶16). Also, even though Mr. REDACTED told the Parents to email him their questions about the program which they did, the DOE failed to respond (Id., Parent Ex. “H”). In addition, the Parents fully cooperated with the CSE at all times (Id. at ¶19). Finally, even though the Parent signed the enrollment contract with the School on March 8, 2022, there was an exit clause allowing them to disenroll the Student before September 15, 2022 and get back 75% of the $500.00 deposit if the District recommended an appropriate placement for the Student (see: Infra).

Based on the foregoing, this IHO finds that the Parents have satisfied the third prong of the Burlington/Carter Criteria for tuition reimbursement. Having met all three (3) of the Burlington/Carter Criteria, the Parents are entitled to reimbursement for the cost of the Student’s tuition at the School for the 2021/2022 school year. The record in this case establishes that the Student’s total annual tuition at the School for the 2021/2022 school year is SEVENTY FOUR THOUSAND SEVEN HUNDRED AND FIFTY DOLLARS ($74,750.00), which the Parents allege would be a financial hardship and therefore are unable to pay because of their total family gross income, e.g., NINETY FIVE THOUSAND DOLLARS ($95,000.00) for the 2021 tax year (Id. at ¶20, Parent Ex. “L”’ “V” at ¶20).

Based upon the total household income, the Parents have shown that it, would be a financial hardship for them to fund the Student’s aforementioned tuition at the School for the 2021/2022 school year, totaling SEVENTY FOUR THOUSAND SEVEN HUNDRED AND FIFTY DOLLARS ($74,750), and are therefore requesting the DOE be ordered to pay such tuition directly to the School (Parent Ex. “A”, “V” at ¶¶20, 21).

As explained by the Court in Mr. & Mrs. A. ex rel. D.A. v. New York City Dept. of Educ., 769 F. Supp 403 (S.D.N.Y. 2011):

Within this Circuit, a number of courts have stated or suggested in dicta that a direct tuition remedy is available where parents have presented a meritorious Burlington claim but lack the financial means to pay private school tuition out-of-pocket. For example, in Connors v. Mills, 34 F. Supp. 2d 795 (N.D.N.Y. 1998), plaintiff sought prospective payment of tuition costs at a non-approved private school, where the school district had conceded that it could not provide a FAPE to her child. Connors, 34 F. Supp. 2d at 797, 799. The school district contended that IDEA does not authorize prospective direct payment of private school tuition, and that plaintiff was required "to front the costs of unilateral and thereafter to request due process review in order to obtain reimbursement for same." Id. at 800. The court concluded that the school district could be required, under § 1415, "to pay the tuition directly" to the private school:

once the Burlington prerequisites relative to a nonapproved private school are met, and a parent show that his or her financial circumstances eliminate the opportunity for unilateral placement in the non-approved school, the public school must pay the cost of private placement immediately. Id. at 805-06.

Id. at 425.

Moreover, under 20 U.S.C. §1415((i)(2)(C)(iii) direct retroactive payment is an appropriate remedy in proceedings under IDEA (see: Mr. and Mrs. A. ex rel. D.A. v New York City Dept. of Educ., supra at 428, in which the court held "[W]here a private school is willing to enroll the student and take the risk that the parents will not be able to pay tuition costs or will take years to do so parents who satisfy the Burlington factors have a right to retroactive direct tuition payment relief." Id.

Since the Parents have presented a “meritorious Burlington claim but lack the financial means to pay the School’s tuition out-of-pocket”, the direct payment to the School of the Student’s tuition for the 2021/2022 school year, is an appropriate remedy in this case (see: Connors v. Mills, 34 F.Supp.2d 795 at 805-806, 132 Ed. Law Rep. 767 (N.D.N.Y. 1998), Mr. & Mrs. A. ex rel. D.A. v. New York City Dep't of Educ., supra).

G. Transportation: As aforementioned the Parents request that a determination be made by this IHO that the District is obligated to provide transportation to the School (Parent Ex. “A”). As explained by the SRO in App. No. 18-115 (2018), citing relevant case law:

... under a more traditional application of the Burlington/Carter framework for tuition reimbursement, an order for tuition reimbursement may very likely have included the costs of the transportation sought by the parent (see Union Sch. Dist. v. Smith, 15 F.3d 1519, 1528 [9th Cir 1994) (finding "that the language and spirit of the IDEA encompass reimbursement for reasonable transportation and lodging expenses... as related services"); see also N.E. Cent. Sch. Dist. v. Sobol, 79 N.Y.2d 598, 608 (1992) [finding that, since a FAPE included related services such as transportation, an order of reimbursement for transportation was an appropriate remedy for a denial of a FAPE)).

Id.

Accordingly, this IHO’s decision that the Parents are entitled to tuition reimbursement, encompasses the District’s provision of reasonable transportation for the Student to the School for the 2021/2022 school year.

ORDER

IT IS HEREBY ORDERED that no later than thirty (30) days after this Decision, the DOE shall pay directly to the School the total amount of SEVENTY FOUR THOUSAND SEVEN HUNDRED AND FIFTY DOLLARS ($74,750.00), representing the Student’s total tuition for the School for the 2021/2022 school year, upon the Parents submitting documentation to the District demonstrating the Student’s attendance at the School for the 2021/2022 school year; and AND IT IS FURTHER ORDRED that the District is obligated to provide the Student with roundtrip transportation between her home and the School for the 2021/2022 school year.

June 21, 2022

Randy Glasser

Randy Glasser, Esq.

Impartial Hearing Officer

NAMES AND TITLES OF APPEARANCES FOR HEARING HELD ON:

MAY 6, 2022

DOE

REDACTED, Esq., Agency Attorney

PARENTS

REDACTED, Esq., REDACTED

JUNE 14, 2022

DOE

None

PARENTS

REDACTED, Esq., REDACTED

REDACTED, Parent

REDACTED, Teacher, The School

REDACTED, Principal, The School

DOCUMENTS ENTERED INTO THE RECORD

IHO Exhibits

I. IEP, 6/15/2022, 22 pages

II. Order of Extension, 5/12/2022, 1 page

• • DOE Exhibits
• • None
• • Parents’ Exhibits A. Demand for Due Process with email confirmation, 01/03/22, 10 pages B. Ten Day Letter with email confirmation, 08/27/21, 03 pages C. Neuropsychological Evaluation, 11/10/20, 13 pages D. Parent email to CSE requesting IEP Meeting 03/26/21 01 06/07/22 E. Parent email to CSE sharing reports, 5/10/2021, 6 pages F. Parent email to CSE sharing reports, 5/11/2021, 6 pages G. Parent email to CSE sharing transportation forms, 06/14/21, 06 pages H. Parent email to Placement School, 06/29/21, 02 pages I. Parent email to CSE re: urgent transportation issue, 10/03/21, 03 pages J. CV and License of Neuropsychologist, Undated, 12 pages K. School Program Description, 2021/2022, 08 pages L. School Enrollment Contract, 3/8/2021, 05 pages M. School Student Schedule, 2021/2022, 01 page N. School Student Attendance, 2021/2022, 01 page O. School Mid-Year Progress Report, February 2022, 14 pages P. School Mid-Year Report Card, February 2022, 01 page Q. School Q3 Report Card, April 2022, 01 page R. Resume and License of Student’s Teacher, Undated, 02 pages S. Resume of Principal, undated, 01 page T. Affidavit of Principal, 06/13/22, 06 pages U. Affidavit of Student’s Teacher, 6/14/2022, 5 pages V. Affidavit of Parent, 6/14/2022, 6 pages

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.

Footnotes

[1] Notably, only opening statements were made at the first day of the hearing held on May 6, 2022.