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CASE NUMBER: 568507 - NYC: 223481
FINDINGS OF FACT AND DECISION
Student’s Name [1]: [REDACTED] (“Student”)
Date of Birth: [REDACTED]
School District: [REDACTED]
Hearing Requested by: [REDACTED] (“Parents”)
Request Date/Date Complaint Filed: January 5, 2022
Date(s) of Hearing: March 16, 2023
Actual Record Closed Date: April 2, 2023
Date of Decision: April 16, 2022
Date of Distribution if Different than Decision Date:
Hearing Officer: Lisa S. Rusk, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
MARCH 16, 2023
For the Student:
[REDACTED], Attorney
[REDACTED], Parent Student
[REDACTED], Educational Director, [REDACTED]
For the Department of Education:
No one
INTRODUCTION AND PROCEDURAL HISTORY
This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parents’ Due Process Complaint (“DPC"), dated January 5, 2022. (Ex. P-A) 2. The record does not contain any evidence of a response by the [REDACTED] (hereinafter referred to as “the District”). This IHO was appointed on November 18, 2022. A conference was held on notice to both parties on December 2, 2022. [REDACTED] appeared on behalf of the Parents. No one appeared on behalf of the District. This IHO was advised by Parents’ counsel that a different IHO had previously been appointed and had recently recused himself 3. Another conference on notice to both parties was scheduled for January [3], 2023. [REDACTED] appeared on behalf of the Parent. Again, no one appeared on behalf of the District. A status conference was held on January 20, 2023. [REDACTED] appeared on behalf of the Parents. [REDACTED] appeared on behalf of the District. The parties requested another status conference be scheduled for February 6, 2023 in hopes of receiving an update on possible resolution from a District attorney apparently assigned to the case (T:22). On February 6, 2023, [REDACTED] appeared on behalf of the Parents. No one appeared on behalf of the District. Again, the Parents requested additional time to hear back from the District. A final status conference was scheduled for February 21, 2023. (see Exhibit IHO I). [REDACTED] appeared on behalf of the Parents. [REDACTED] appeared on behalf of the District. [REDACTED] advised that the District was not making a settlement offer, and the matter was scheduled for hearing on March 16, 2023 with the agreement of the parties (T:37).
The Parents served their disclosure on [REDACTED] on March 8, 2023 (T:46, Ex. IHOI). [REDACTED] did not appear at the hearing or request an adjournment. On March 16, 2023, this IHO sent an email to [REDACTED] inquiring where she was, and she did not respond (T:45). As such, the hearing proceeded in absentia.
Four extensions of the compliance date were granted at the request of the Parents to enable time to negotiate a settlement and ensure witnesses were available [4]. The Parents entered into evidence exhibits A-R.[5] Two witnesses testified on behalf of the Student, including the Student’s father. The District did not enter any evidence into the record or respond to emails sent by the IHO on March 16, 2023. The record was closed on April [2], 2023.
JURISDICTION
The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.
BACKGROUND
The Student was [REDACTED] years old at the time of the filing of the DPC. He was classified by the District’s Committee on Special Education (“CSE”) as a student with Autism. According to the DPC, a CSE annual review meeting was held in April of 2021 to develop an Individualized Education Program (“IEP”) and recommended a 12 month 6:1:1 class in a District specialized school for the 2021-22 school year. The IEP also recommended counseling, occupational therapy (“OT”), speech language therapy and parent counseling and training (Ex. P-A-1-2). The Parents rejected the IEP and unilaterally placed the Student at [REDACTED] (hereinafter referred to as “the private school”) (see letters, dated August 12, 2021 and September 16, 2021 – Exs. P-B and P-C). The IEP is not in the record.
ISSUES
The Parents raise in the DPC numerous procedural and substantive challenges to the DPC including:
• Insufficient evaluations and failed to include parents in the evaluation process.
• The CSE was not duly constituted, predetermined its recommendations, and the full continuum of services was not considered.
• The IEP is insufficient to meet the Student’s needs and does not provide enough individualized instruction.
• The proposed peer group is inappropriate.
• The present levels of performance, goals and supports, services and strategies are insufficient to meet his needs.
The DPC requested a finding that the District violated the Student’s right to a free appropriate public education (“FAPE”) and direct funding/reimbursement for the unilateral placement at the private school. As stated above, the record does not contain a response from the District to the DPC in any manner.
FINDINGS OF FACT
[REDACTED] (hereinafter referred to as “the Educational Director”) testified via affidavit that she has worked at the private school for the past 37 years. She is New York State certified in general and special education and worked as a master teacher and teaching assistant prior to becoming the educational director. She described the private school’s Boy’s Program as a small program of 50 students in 7 classes ranging in ages from 5 to 21. The students have learning disabilities, speech and language delays, autism or behavioral/social/emotional issues (Ex. P-R-1).
The Educational Director has known the Student since he first enrolled in the 2019-20 school year and observed the Student weekly in and out of the classroom during the 2021-22 school year. His rate of academic progress is impacted by his delays in speech and language, social pragmatic skills, executive functioning, social/emotional/behavior skills and motor skills. He required a structured learning environment with explicit, systematic direct instruction, decreased distractions, multi-sensory materials, manipulatives, checklists, graphic organizers, visual aids and cues, worksheets and activities, repetition, review, prompting, redirection, praise, positive reinforcement and attention, modeling, roleplaying and structured play, direct social skills instruction, a behavior modification system and related services to address his deficits (Ex. P-R-2).
His class had a total of 8 students aged 9 to 13 with similar academic and social/emotional functioning. The class had 2 lead teachers and 2 assistants, and a paraprofessional assigned to another student. One lead teacher taught in the morning, and one in the afternoon. His morning teacher was New York State certified in general and special education. His afternoon teacher had 19 years of teaching experience. The Educational Director supervised the teachers and assistants (Ex. P-R-3).
The private school developed an individualized program for the Student with individualized and classroom goals and a behavior modification system. During the 2021-22 school year, he progressed from a beginning 3rd grade reading level to an end of 3rd grade reading level (Ex. P-R-4). His math level went from a mid 3rd grade level to a beginning 4th grade level. His writing went from a beginning 3rd grade level to an end 3rd grade level (Ex. P-R-5-6). His social skills also improved (Ex. P-R-4).
The Student received counseling 2 times per week, OT 2 times per week, speech language therapy 3 times per week by licensed providers. His parents received parent counseling and training for five hours during the 2021-22 school year by a licensed social worker (Ex. P-R-6-7). It was reported that he made progress in counseling, OT and speech (Exs. P-I, and P-J and P-K, T:68).
The Parent signed a contract with the private school on August 26, 2021 (Ex. P-N). The total cost for tuition and related services for the 2021-22 school year was $70,050 (Exs. P-N and P-O). The Parents made no payments toward the tuition or related services (Ex. P-O). The Parent testified that they could not afford the tuition and costs and submitted their 2021 U.S. tax return (T:77,Ex. P-Q).
CONCLUSIONS OF LAW
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 comprehensive written IEP (34 C.F.R. § 300.13). 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 reasonably calculated to enable the student to receive educational benefits Bd. 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). If a procedural violation has occurred, relief is warranted only if the procedural violation affected the student's right to a FAPE. 8 NYCRR §200.5[4]; J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 (2d Cir. 2000).
In New York State, 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 or payment for services 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)). It is well settled that 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]), 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]).(Application of a Child with a Disability, SRO Appeal No. 22-154).
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 (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School Dist. Four v. Carter, 510 US 7 [1993]). If the District is unable to prove that it met its burden under Prong I of the three prong Burlington/Carter test, the Parents in order to meet their burden must establish by a preponderance of the evidence, that the unilateral placement provided “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]. However, the private school placement “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements” (Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d. Cr. 2006]. 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.
The standard to apply is whether "[the] unilateral private placement ... provides educational instruction specifically designed to meet the unique needs of a handicapped child" Gagliardo, 489 F.3d at 115):
“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).
Finally, under the third prong of the Burlington/Carter test, equitable factors must weigh in the favor of the parents in order to qualify for an award of tuition reimbursement. Where parents “lack the financial resources to ‘front’ the costs of private school tuition, and in the rare instances where 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 Burlington factors have a right to retroactive direct tuition payment relief” (Mr. and Mrs. A. v. New York City Dept. of Educ., 769 F.Supp. 2d 403,428 [SDNY 2011]. Proof of inability to pay is not required to establish the propriety of direct retrospective payment of tuition or fees by a school district (Ferreira and Rojas v. New York City Dept. of Educ., 22 Civ 4993, 123 LRP 9785 [March 14, 2023 SDNY]).
ANALYSIS
As stated above, it is the District’s burden to demonstrate that it has offered the Student a FAPE. The Parents claimed numerous procedural and substantive deficiencies resulted in a denial of a FAPE for the 2021-22 school year. The District failed to make any effort to defend its recommendations. No District IEP or testing was introduced into evidence, and no witnesses testified on the District’s behalf.[6] I find that the District failed to offer the Student a FAPE for the 2021-22 school year. [7]
Turning to the private school program selected by the Parents, based upon a thorough review of the testimony and evidence, I find the Parents met their burden that the private school provided the Student with specific instruction to meet his unique special education needs during the 2021-22 school year. The testimony of the Educational Director was uncontroverted. The testimony and evidence reflect that the private school provided him with specific strategies to help regulate his behaviors so that he was available for learning and able to progress academically at a rate commensurate with his disabilities. It is undisputed that the Student made progress in his academic functioning, social/emotional functioning and behavioral/executive functioning skills in a program that met his needs (Ex. P-R-8).
With regard to equitable considerations, the record is devoid of any evidence that the Parents failed to cooperate with the District or acted in any way to thwart the CSE process. However, there is no progress report or evidence in the record to indicate that the Student’s special education needs were met in Hebrew reading, prayer or bible studies (T:60). As such, I have discounted the tuition ($57,000) by the amount of time he spent in religious studies (12%) The discounted tuition plus the $13,050 for related services equals $63,210.
I find that the private school was an appropriate unilateral placement, and the equitable considerations weigh in favor of the Parents, except to the extent indicated.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
1. ORDERED that the District shall pay the private school directly for the Student's 2021-
22 school year tuition in an amount not to exceed sixty three thousand two hundred and ten dollars ($63,210) within 30 days of the date of this decision.
SO ORDERED.
DATED: April 16, 2023
LISA RUSK
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.
APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD
PARENT EXHIBITS
A. Impartial Hearing Request 01/05/2022 4 pages
B. Ten Day Notice with Receipt Confirmation 08/12/2021 3 pages
C. Letter to [REDACTED] with Receipt Confirmation 09/16/2021 3 pages
D. [REDACTED] Educational Plan – Teacher June 2022 13 pages
E. [REDACTED] Educational Plan – Speech and Language June 2022 2 pages
F. [REDACTED] Educational Plan – Counseling June 2022 1 page
G. [REDACTED] Educational Plan – Occupational Therapy June 2022 2 pages
H. February [REDACTED] – Teacher Progress Report 2022 4 pages
I. February [REDACTED] – Speech Progress Report 2022 1 page
J. [REDACTED] – Counseling Progress Report 02/17/2022 1 page
K. February [REDACTED] – Occupational Therapy Progress Report 2022 1 page
L. [REDACTED] – Program Description [REDACTED] – Daily Schedule N/A 2 pages
M. 2021-2022 1 page
N. [REDACTED] – Enrollment Contract 08/26/2021 3 pages
O. [REDACTED] – Tuition Affidavit 03/23/2022 1 page
P. [REDACTED] – Attendance 07/25/2022 1 page
Q. Parents’ 2021 U.S. Individual Income Tax Return N/A 2 pages
R. [REDACTED] Affidavit of Testimony 03/06/2023 9 pages
IHO’S EXHIBITS
I. Emails to parties from IHO 3/16/23 1 page
Footnotes
[1] Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.
[2] Exhibits shall be referred to as follows: “P” for Parents’ Exhibit; “D” for District’s or Department’s Exhibits; and “IHO” for Impartial Hearing Officer’s Exhibits. Exhibits will be followed by the exhibit number and page numbers as needed and appropriate.
[3] There were no prior transcripts from the previous IHO, despite several extensions being granted (T:3).
[4] The second and third extensions were jointly requested.
[5] A more detailed list of the admitted exhibits is attached as Appendix B, “Documentation Entered Into the Record,” to this decision.
[6] Responsibility for such deficiency lies with the District (see Application of a Student with a Disability, Appeal No. 21-194 at pg. 17).
[7] Based upon the finding that the District did not meet its burden, I do not find it necessary to address every claim raised in the DPC.