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CASE NUMBER: 568548 - NYC: 223487
FINDINGS OF FACT
Case Number: 223487
Student's Name: REDACTED
Date of Birth: REDACTED
District: REDACTED
Hearing Requested By: Parent
Dates of Hearing: 03/07/2022
03/16/2022(pendency)
07/15/2022
Record Close Date 09/06/2022
Hearing Officer: TINA MILLMAN Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON 03/07/2022
For the Student:
REDACTED, Parent Attorney
For the Department of Education:
REDACTED, District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED ON 03/16/2022
For the Student:
REDACTED, Attorney
For the Department of Education:
No Appearance, District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED ON 07/15/2022
For the Student:
REDACTED, Attorney
REDACTED Parent
REDACTED Parent
REDACTED, Director of REDACTED
For the Department of Education: REDACTED, District Representative
INTRODUCTION
On 01/10//2022, I was appointed as the Impartial Hearing Officer (“IHO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) and Article89 of the Education Law of the State of New York. The Parent filed the Due Process Complaint (DPC), dated 01/15/2022. (Ex A)
Appended to the record are lists of persons in attendance and the documents received in evidence.
Hearings were subsequently held for the matter on March 7, 2022, and July 15, 2022. A Pendency Hearing was held March 16, 2022 and an Order was issued stating the following:
ORDERED that the Department of Education shall continue to provide funding during the Pendency of this proceeding the students 12-month Special Education Program and tuition at the REDACTED pursuant to the un-appealed FOFD dated 1/18/22 (Exhibit B).
The Hearing Request alleges the DOE failed to offer the Student a Free and Appropriate Public Education (FAPE) for the 2021-2022school year. (Ex A)
The Parent seeks the DOE to pay for the students’ tuition and special education placement at the REDACTED (hereinafter REDACTED ) for the Students’ 2021-2022 unilateral placement at REDACTED. (Ex. D and E)
DEPARTMENT OF EDUCATION POSITION
No witnesses nor evidence were submitted to support that a FAPE was provided to the Student for the 2021-2022 school year. At the Hearing on 07/15/2022 the DOE representative stated the DOE is “not presenting” a Prong I case. With regard to Prong II the DOE representative states the DOE reserves their right to challenge the appropriateness of the Parents unilateral placement and will wait to hear the testimony of the witnesses. With reference to Prong III, the DOE representative stated the DOE reserves their right to challenge the equities however no challenges were made to either the appropriateness nor as to equities. The DOE representative waived an opening statement and thereafter rested their case. The DOE waived their right to a closing statement and although the DOE representative did briefly cross examine REDACTED, no challenges were made to the appropriateness of the parents unilateral placement nor were any equitable challenges raised.
THE PARENT’S POSITION The Parent ‘s attorney set forth allegations and relief sought in the DPC and at Hearing. (ExA) The Parent submits 2 affidavits and utilizes them in lieu of direct testimony. The Parent submits an affidavit of REDACTED and the Parent REDACTED. (Exhibits P and Q.).The Parent submits a total of 17 documents into evidence A-Q.
FINDING OF FACTS AND DECISION
Purposes of the Individuals with Disabilities Education Act(IDEA)(20U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, )2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).
A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 [2d Cir. June 24, 2013]; R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012], cert. denied 2013 WL 1418840 [U.S. June 10, 2013]; M.H. v. New York City Dep'tof Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998] [quoting Rowley, 458 U.S. at 206]; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that"[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at*10 [S.D.N.Y. Feb. 9, 2007]).
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 (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y.Aug. 21, 2008], aff'd, 2009 WL 3326627 [2d Cir. Oct. 16, 2009]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007], aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).
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). The statute ensures an "appropriate" education, "not 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, 2012 WL 4946429 [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]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).
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. Dep't 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]; see also Application of the Dep'tof Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep'tof 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).
The Supreme Court has stated that even if it is unreasonable to expect a student to attend a regular education setting and achieve on grade level, the educational program set forth in the student's IEP "must be appropriately ambitious in light of his [or her] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives" (Endrew F., 137 S. Ct. at 1000).
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 92)."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 burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85). A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129). A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. at 13- 14). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 [2d Cir. 2000]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement'" (Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). When determining whether a unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether the placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] ["evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]). A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR 200.1[ww]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014];C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).
The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement. No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).
The final criterion for a reimbursement award is that the parents' claim must be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; M.C. v. Voluntown Bd. of Educ., 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"]; L.K. v. New York City Dep't of Educ., 674 Fed. App'x 100, 101 [2d Cir. Jan. 19, 2017]). With respect to equitable considerations, the IDEA also provides that reimbursement maybe 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] [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]; 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"]).
Reimbursement may be reduced or denied if 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, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1]). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools" (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]). Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision (Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68).
Prong I
Did the DOE offer of FAPE for the 2020-21 School Year?
The DOE offered no evidence nor did they call any witnesses to support they offered a of FAPE to the Student for the 21 -22 school year. The SRO has found that allegations that are left unchallenged are deemed as true. ( See Application of a Student with a Disability, 01- 044.) By failing to present witnesses, or evidence I find that the DOE essentially conceded that a FAPE was not provided to the student for the 20-21 school year.
Prong II
Was REDACTED an appropriate Placement for the 21-22 School Year?
The DOE representative initially reserved their right to challenge the appropriateness of the Parents unilateral placement. It is noted that at the conclusion of the hearing no challenges were made.
The Parents submit 17 documents into evidence (Exhibits A-Q) to support that REDACTED is an appropriate placement for the student. It is noted that in lieu of direct testimony the Parents attorney offers into evidence an affidavit from the Parent REDACTED (Ex Q) as well as an affidavit from Director of the REDACTED, REDACTED (Ex. P). Ms. REDACTED affidavit details the academic program provided as well as the related services the student receives. Additionally, she notes the student requires a REDACTED (Ex. O) and notes a decrease in REDACTED interfering behaviors. In addition, she notes the students’ progress in reading as REDACTED progressed REDACTED reading from Level I to J. She describes in her affidavit an individualized academic program for the student. For the 21-22 school year, and notes the student responding to “wh” questions that required REDACTED to infer information after reading. The student is also making progress in Math as REDACTED is learning to round up dollar amounts to the nearest dollar REDACTED has also learned how to add multiple items together using a calculator. This is a small portion of the progress detailed in Ex. P. She concludes her affidavit by affirming her belief that REDACTED is an appropriate placement for the student. Exhibit J, educational progress reports further elaborate on the individualized program created for the student and the progress noted during the 21-22 school year.
The Parent’s affidavit opines the students’ progress, socially, academically and emotionally and affirms her belief that REDACTED is an appropriate placement. She elaborates her belief by citing examples in Ex. Q.
The DOE representative had minimal cross examination of REDACTED and declined to cross-examine the Parent. In addition to the affidavits submitted to support progress, the Parents submit related service reports from both the Speech and Language Therapist as well as the Occupational Therapist, detailing the work being done with the student and the progress made. (Ex. K,L,M,N )
Based upon the credible affidavits and documents submitted into evidence coupled with the DOE not challenging the appropriateness of the Parents unilateral placement, I find REDACTED served as an appropriate placement and program to the Student for the 2021-22 school year.
Prong III
Are their equitable considerations that would reduce or bar the relief requested by the Parents?
The Parent is not evidenced in any way to have frustrated any attempt by the DOE to offer the Student a FAPE for the 20-21 school year. The DOE Representative did not raise any equitable challenges during the course of the hearing.
TUITION FUNDING 2020-2021 School Year
Parent provides appropriate documentary evidence to support tuition funding of Student attendance at REDACTED for the 2021-2022 school year.
Parent seeks Direct/Prospective Funding for the students’ 12-month special education program and tuition in the amount of $ 164,630.00 and reimbursement to the Parent in the amount of $150 as supported by Exhibit E.
ORDER
- • Department of Education (DOE) failed to offer the Student a FAPE for the 2021-2022 school year.
- • REDACTED serves as an appropriate placement for the Student for the 2021-22 school year.
- • The DOE shall fund at their sole cost and expense the students’ 12-month special education program and tuition at REDACTED for the 2021-2022 school year in an amount not to exceed $164,780.00 to be paid as follows:
- • Direct Payment to REDACTED in the amount of $164,630.00
- • Reimbursement to the Parent in the amount of $150.00
- • This decision is subject to appeal and review by the State Review Officer.
DATED: September 6, 2022
Impartial Hearing Officer
PLEASE TAKE NOTICE
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. The regulations governing appeals 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.
As those Regulations detail, before filing an appeal, if either party intends to appeal the decision, a Notice of Intention to Seek Review shall be personally served upon the opposing party before the Appeal itself is filed, no later than 25 days after the date of the decision sought to be reviewed.
The Appeal itself must 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.
The Department of Education has designated the New York City Law Department to accept service of papers on its behalf, including appeals of decisions of Impartial Hearing Officers. Such service is made at 100 Church Street, New York, NY 10007 at the Messenger Center.
DOCUMENTATION ENTERED INTO THE RECORD PARENT
EXHIBIT
DATE
DOCUMENT TITLE # OF PAGES
A 01/5/2022 Due Process Request 5
B 01/18/2022 Findings of Fact 18
C 06/17/2021 Ten-Day Notice 5
D 07/7/2021 Tuition Contract 5
E 03/7/2022 Tuition Affidavit 1
F 2020 Tax Returns 3
G 2020 Tax Returns 2 H undated Program Description 12
I 2021-2022 Classroom Goals 6
J 12/2021 Educational Progress Report 7
K 2021- 2022 Occupational Therapy Goals 2
L 12/2021 OT Progress Report 6
M 2021-2022 Speech and Language Goals 2
N 12/2021 Speech & Language Progress Report 5
O
07/2021
FBA & BIP 12
P 07/13/22 Testimony Affidavit of REDACTED 5
Q 7/11/22 Testimony Affidavit of REDACTED 3 DOE-NO Evidence