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CASE Number: 569181 – NYC: 223952
FINDINGS OF FACT AND DECISION
Case Number: 223952
Student’s Name [1]: [REDACTED] (“Student” or “[REDACTED]”)
Date of Birth: October 28, 2010
School District: [REDACTED]
Hearing Requested by: [REDACTED] (“Parent(s)”)
Request Date/Date Complaint Filed: January 14, 2022, Amended February 22, 2022
Date(s) of Hearing: March 22, 2022
May 6, 2022
Actual Record Closed Date: March 15, 2023
Date of Decision: March 16, 2023
Date of Distribution if Different than Decision Date:
Hearing Officer: ANNETTE HICKS GILL
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 22, 2022
| Party | Name/Title |
|---|---|
| For the Student | NONE |
| For the Department of Education | [REDACTED], Ph.D., District Representative |
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 6, 2022
| Party | Name/Title |
|---|---|
| For the Student | [REDACTED], ESQ., Attorney |
| For the Student | [REDACTED]-ZOW, Parent |
| For the Student | [REDACTED], Head of Lower School, The [REDACTED] School of Manhattan |
| For the Department of Education | [REDACTED], Ph.D., District Representative |
INTRODUCTION AND PROCEDURAL HISTORY
This case was brought before the undersigned Impartial Hearing Officer pursuant to appointment by the New York City Department of Education (DOE) under the Individual with Disabilities Education Act (IDEA), 20 United States Code §1415(f)(1). It is regarding the Parent’s Due Process Complaint (“DPC") filed on or about January 14, 2022, and amended on February 22, 2022. (P exhibits A and B)[2].
The Due Process Complaint (DPC) February 22, 2022, included multiple claims that the DOE had failed to provide the Student an appropriate educational program and placement for the 2021-2022 school year. It specifically requests reimbursement for unilateral placement at the [REDACTED] school (School) for the 2021-2022 school year and reimbursement for the cost of the student’s independent neuropsychological evaluation. The Parent contends that the DOE failed to meet its burden of proving that it offered a FAPE. The Parent further argues that the unilateral placement was appropriate. The Parent adds that there are no equity concerns as the Parent fully cooperated with the DOE. (P exhibit A).
At hearing on May 6, 2022, the District maintained that there was an IEP developed for student and a school location letter was issued. Documentary evidence was offered; however, no oral testimony was and the District rested. The issue was narrowed down to the appropriateness of [REDACTED] (transcript pp 40-41), and whether the Parent should be reimbursed for the independent neuropsychological evaluation.
A hearing was held on May 6, 2023. The Parent was represented by [REDACTED], ESQ., and the DOE was represented by [REDACTED], PH.D. Parent offered Exhibits A-Z however, only the following were admitted into evidence exhibits A- Amended Impartial Hearing Request dated 2.22.22; B- Impartial Hearing Request dated 11.22.21; C- Individualized Education Program, dated 3.11.22; E- Neuropsychological Evaluation dated 7.21.21; G- Occupational Therapy Evaluation dated 12.20.21; H- Speech Language Evaluation dated 12.17.21; I- IEP Recommendations rejection Letter dated 1/11/11; J-School Placement Rejection Letter dated 1.11.22; L-Prior Written Notice Reevaluation dated 12.8.21; M- Student Enrollment Contract dated 9.3.21; N- [REDACTED] Handbook; O- [REDACTED] 2021-2022 School Schedule undated; P- Affidavit of Payment dated 2.16.2022; Q- Therapy Interim Report dated 11.2020; R- School Progress Report dated 2.9.22; S-Therapy Interim Report dated 1.2022; T-School Progress Report dated 2.9.22; U- Prior Written Notice dated 4.8.22; V- School Location Letter dated 4.8.22; W- School Rejection Letter dated 4.21.22; X- [REDACTED] Enrollment; and Y- [REDACTED] Enrollment.- DOE entered into evidence exhibits 1- Individualized Education Program dated 11.2.21; 2- Mid-Year Report; 3- Neuropsychological Evaluation; 4- Prior Written Notice dated 12.8.21; 5- School Location Letter dated 12.8.21; 6- Email Between Parent and CSE dated 12.3.21; AND 7- Summary and Recommendations dated 12.2021[3].
The record was closed on March 15, 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.
ISSUES
Whether the placement at the [REDACTED] School was appropriate; and whether the Parent is entitled to reimbursement for the cost of the Independent Evaluation.
FINDINGS OF FACT
According to the record, J is an 11-year-old student who began attending The [REDACTED] School of Manhattan ([REDACTED] or School) at the beginning of the 2021-2022 school year as a fifth grader. Prior to that, J attended a DOE public school where the student had to repeat kindergarten. J then went on to [REDACTED], an independent school and continued to struggle academically despite academic and social interventions, and a smaller classroom. The student attended individual and group therapy for serval years for anxiety and depression and was diagnosed with post-traumatic stress disorder (PTSD). Due to concerns over the child’s needs, the Parent sent the child for a neuropsychological evaluation in June and July of 2021 which revealed various academic and emotional deficits. The child was diagnosed with a specific learning disorder in reading, written expression, and math; post-traumatic stress disorder; and unspecified depressive disorder with anxious distress. The student was also found to need Occupational Therapy, Physical Therapy, and Counseling. The Occupational Therapist (P exhibit G) and Speech therapist (P exhibit H) confirm the Student’s need for said services. As a result of the recommendation of a small and structured special education classroom environment with professionals who are specifically trained to work with students like [REDACTED], the Parent made a unilateral placement at [REDACTED] which would provide the remediation and other services that the student needs. Said placement was done after the Parent had informed the district of her rejection of the school placement and her intention to place her child at [REDACTED]. The head of the lower school at [REDACTED] stated in her testimony that the program in which [REDACTED] attends meets the child’s individual needs and to the child’s progress. The Parent further contends that the school placement by the District is too large and does not have the necessary teaching expertise, methodology, interventions and individualized instruction that [REDACTED] requires to make meaningful progress. The Parent also testified that the student is making improvements academically and social-emotionally. Lastly, the Parent contends that the District did not afford her the opportunity to have any meaningful input to her child’s placement and that she fully cooperated with the District. (see transcript).
CONCLUSIONS OF LAW AND ANALYSIS
The decision in this case rests on a determination of the three-pronged test set forth by the United States Supreme Court in the Burlington case, which provided that a board of education may be required to pay for educational services obtained for a child by the child’s 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. Dept. of Educ., Massachusetts, 471 U.S. 359 (1985); Florence County Sch. Dist. Four v. Carter, 510 US 7 (1993).
ISSUE 1 - Appropriateness of School District Program
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); see also Tarlowe v. New York City Bd. Of Educ., 2008 WL 2736027 (SDNY 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. The IEP must accurately reflect the results of evaluations to identify the student's needs, establish annual goals related to those needs, and provides for the use of appropriate special education services. 34 CFR §300.320(a)(2); 34 CFR §300.320(a)(4); 8 NYCRR §200.4(d)(2)(iii); 8 NYCRR §200.4(d)(2)(v); see Application of the Board of Education, Appeal No. 14-104; Application of the New York City Department of Education, Appeal No. 13-121.
In this case, the district representative did not state that the DOE had provided the child with a FAPE for the 2021-2022, neither did he provide any documentary evidence or witness testimony. The District also did not note any issues concerning equity in this matter.
For the reasons noted, I find the district failed to provide a FAPE for the student.
ISSUE 2 – Appropriateness of Parent Placement
Analysis turns to the second prong of Burlington, under which the parents bear the burden of proving the appropriateness of the services obtained for the student. M.S. v. Board of Education of the City of Yonkers, 231 F.3d 96, 104 (2d Cir. 2000); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 94-29; Application of a Child with a Disability, Appeal No. 95-57. In order to meet that burden, the parents must show that the [REDACTED] offered an educational program designed to meet Student’s special education needs. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985). A unilateral placement is only appropriate if it provides education instruction specifically designed to meet the unique needs of a handicapped child. Gagliardo v. Arlington Central School District, 489 F.3d 105 (2d Cir. 2007).
In this regard, I find that the parents have sustained their burden of demonstrating the appropriateness of the program at [REDACTED]. Based on the testing results and the Student’s history, it was recommended that the student be placed in a small, structure with a small student to teacher ratio. It was It was established through testimony and other evidence that [REDACTED] provides the types of services and instruction that the Student is in need of and it is found that the Student made significant progress at this placement
For all the above, I find that the Parent has demonstrated the appropriateness of the program at [REDACTED] for the Student.
ISSUE 3 – Equities
The third prong of the Burlington decision requires a balancing of the equities in determining whether reimbursement should be awarded. The Individuals with Disabilities Education Act (IDEA) provides that an award of tuition reimbursement may be reduced or denied if notwithstanding their being advised that they should do so, parents neither inform the CSE of their disagreement with its proposed placement and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the school district with written notice of such information ten business days before such removal. 20 U.S.C. §1412(a)(10)(C)(iii). In this case, the Parent did inform the Factors relevant to equitable considerations include whether the withdrawal of the student from public school was justified. The 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); see also Frank G., 459 F.3d 356 (2nd Cir. 2006).
In this case, the Parent, through her direct testimony, the affidavit and testimony of the Head of Lower School, and the Neuropsychological report established that the District placement was in adequate and that the unilateral placement had the structure to meet the needs of the student. Further, it was demonstrated that the Student made significant improvement in academic and social-emotional development.
REIMBURSEMENT
A hearing officer is empowered to grant relief he, she or the court determines to be appropriate. 34 C.F.R. §300.516(c)(3). Once such remedy is reimbursement of tuition and related expenses. Florence Cunty Sch. Dist. Four v. Carter, 510 U.S. 7, IDELR 532 (1993); Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S.359, 103 LRP 37667(1985). A local education agency (LEA”) may be required to reimburse parents for their tuition payment to a private school for the services obtained for the student by his or her parents if the services offered by the LEA were inadequate or inappropriate, the services selected by the parents were appropriate under the Act, and equitable considerations support the parents’ claim for reimbursement. Id. In Burlington, the Court found that Congress intended retroactive reimbursement to parents by a Lea as an available remedy in a proper case. Burlington, 471 U.S.at 370-71. “Reimbursement merely requires [an LEA] to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper [IEP] Id. The mere fact that the private school placement does not bar the parents from reimbursement. Florence County Schl. Dist. Four v. Carter, 510 US. 7 (1993).
The initial inquiry is whether the student’s IEP and/or placement is/are “proper or “appropriate.” School Comm. Of Burlington, 471 U.S. at 369 and 374. However, this initial inquiry may go beyond the appropriateness of the IEP and/or placement, See, e.g., Forest Grove v. T.A., 57 U.S. 230 (2009) (child find); P.C. v. Oceanside Union Free Sch. Dist., 818 F. Supp. 2d 516 (E.E.N.Y. 2011) (eligibility) Mr. N.C. v. Bedford Cent. School. Dist., 300 F. App’s 11(2d Cir. 2008) inappropriate evaluation).
In this case, it was established that the placement was no longer able to meet the student’s needs as demonstrated by the testimony of the Director and the Parent and the evaluation.
Should the hearing officer determine that the school district did not offer a FAPE to the student, the next inquiry is whether the parent’s unilateral placement is appropriate” or “proper”. School Comm. Of Burlington, 42 U.S. at 369 and 370; see also Carter 510 U.S. at 15.
I find that the Parent demonstrated through documentary and testimonial evidence that the unilateral placement was appropriate for the student for the 2022-2023 school year.
The final consideration is the balancing of the equites. In this step, the hearing officer must examine the action of the parents and school district, including:
1. Whether the parents failed to provide the school district with timely notice, either at the most recent IEP team meeting or at least 10 business days prior to removal of the student from the public school of their rejection of the proposed public placement, including their concerns and intent to enroll the student in a private school at public expense. 20 U.S.C. § 1412(a)(10)(C)(iii)(I); 34 C.F.R. § 300.148(d)(1).
2. Whether prior to the student’s removal, the school district informed the parents of its intent to evaluate the student, but the parent did not make the student available for the evaluation. 20 U.S.C. §1412(a)(10)(C)(iii)(II), 34 C.F.R. § 300.148(d)(2).
3. Whether the parents’ action was unreasonable. 20 U.S.C. §1412(a)(10)(C)(iii)(III), 34 C.F.R. § 300.148(d)(3).
4. Whether the cost of the private placement is unreasonable. Florence County Sch. Dist. Four v. Carter, 510 U.S. at 16.
5. Whether there was a lack of parental cooperation with the school district. C.G. v. Five Town Community Sch. Dist., 513 F.3d 279 (1st Cir. 2008)
In this case, the Parent gave timely notice and demonstrated cooperation with the District. The District notify the Parent that the Student needed to be reevaluated, however, there is nothing establishing that that a Reevaluation was ever scheduled. The record is void of anything that would suggest that the parent was not cooperative. Lastly, no issue was raised regarding the reasonableness of the tuition cost.
ORDER
1. The DOE shall directly refund and prospectively fund the student’s tuition at The [REDACTED] school for the 2021-2022 school year.
2. The DOE shall also fund the cost of the independent neuropsychological evaluation conducted in this case.
SO ORDERED.
DATED: March 16, 2023
Annette Hicks Gill
ANNETTE HICKS GILL
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 – DOCUMENTATION ENTERED INTO THE RECORD
PARENT EXHIBITS
| Exhibit | Document | Date | Pages |
|---|---|---|---|
| A | Amened Impartial Hearing Request | 2.22.22 | 9 |
| B | B- Impartial Hearing Request | 11.22.21 | 7 |
| C | C- Individualized Education Program | 3.11.22 | 28 |
| E | E- Neuropsychological Evaluation | 7.21.21 | 20 |
| G | G- Occupational Therapy Evaluation | 12.20.21 | 11 |
| H | H- Speech Language Evaluation | 12.17.21 | 10 |
| I | I- IEP Recommendations rejection Letter | 12.6.21 | 2 |
| J | J-School Placement Rejection Letter | 1.11.22 | 2 |
| L | L-Prior Written Notice Reevaluation | 12.8.21 | 4 |
| M | M- Student Enrollment Contract | 9.3.21 | 6 |
| N | N- [REDACTED] Program Handbook; | Undated | 13 |
| O | O- [REDACTED] 2021-2022 School Schedule | Undated | 1 |
| P | P- Affidavit of Payment | 2.16.22 | 1 |
| Q | Q- Therapy Interim Report | 11.2020 | 5 |
| R | R- School Progress Report | 2.9.22 | 13 |
| S | S-Therapy Interim Report | 4.8.22 | 3 |
| T | T-School Progress Report | 2.9.22 | 13 |
| U | U- Prior Written Notice | 4.8.22 | 4 |
| V | V- School Location Letter | 4.8.22 | 2 |
| W | W- School Rejection Letter | 4.21.22 | 1 |
| X | X- [REDACTED] Enrollment | 2021-2022 | 1 |
| Y | Y- [REDACTED] Academy Enrollment | 2021-2022 | 2 |
DOE’S EXHIBITS
Exhibit Document Date Pages
1 Individualized Education Program 11.22.21 29
2 Mid-Year Report 2.12.21 8
3 Neuropsychological Evaluation 7.21.21 20
4 Prior Written Notice 12.8.21 4
5 School Location Letter 12.8.21 2
6 Email 12.3.21 2
7 Summary and Recommendation 12/2021 1
IHO’S EXHIBITS
| Exhibit | Document | Date | Pages |
|---|---|---|---|
| None |
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] A more detailed list of the admitted exhibits is attached as Appendix B, “Documentation Entered Into the Record,” to this decision.