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CASE NUMBER: 569993 - NYC: 224474
FINDINGS OF FACT AND DECISION
Case Number: 224474
Student’s Name: REDACTED (“Student”)
School District: N.Y.C. Dept. of Ed., District # REDACTED Impartial Hearing Officer: Harry A. Christodoulou
Date of Filing: 02/14/2022
Hearing Requested by: REDACTED (“Mother”) & REDACTED (“Parents”)
Date of Hearing: 06/07/2022
Record Close Date: 06/07/2022
Date of Decision: 06/19/2022
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 07, 2022
For the Student:
REDACTED (hereinafter referred to as “Parents’ representative”)
Mother
Interpreter (defined on page 21).
For the Department of Education (“DOE”):
None
BACKGROUND AND PROCEDURAL HISTORY
Student is a REDACTED-year-old classified as a student with a disability under the Individuals with Disabilities Education Act (“IDEA”). The Student’s eligibility for special education supports and services is not in dispute.
On February 14, 2022, the Parents, through the Parents’ representative firm, filed a due process complaint (“DPC”) against the DOE pursuant to the IDEA (Exhibit P-A-3). I was appointed on February 15, 2022, to preside over the claims in the DPC pursuant to New York State regulations, and to conduct an impartial hearing (“IH”) pursuant to 20 U.S.C. § 1415(f) and New York State Education Law § 4404(1) to determine the claims in the DPC concerning the special education program of the Student.
At the prehearing conference (“PHC”) held on April 06, 2022, the Parents’ representative brought to my attention that a proposed amended DPC (“ADPC”) was filed on or about March 07, 2022, but that it has not been accepted by the District (Exhibit IHO-II). Parents’ representative sought IHO approval/permission at the PHC to be granted for the Parents’ proposed amendments. An order for leave to amend was granted on April 14, 2022 (Exhibit IHO-IV).
An order on consolidation was granted on May 09, 2022, declining to consolidate this ADPC with the DPC between the same parties under case number 206296, but that the two cases would move forward under separate case numbers (Exhibit IHO-V). This case therefore only addresses the disputes raised in the ADPC (Exhibit IHO-II).
At a status conference (“SC”) held on May 17, 2022, Parents’ representative requested an IH date, and the IH was ultimately scheduled for and took place on June 07, 2022 (T. P7, L18-21).
JURISDICTION
A decision in this matter is being rendered pursuant to the IDEA[1] and its implementing regulations[2], and the New York State Education Law[3] and its implementing regulations[4].
PARTIES’ POSITIONS AND CASES PRESENTED
DOE:
There was no appearance for the DOE at the IH.
Parents:
The Parents, through the Parents’ representative, submitted 16 documents in support of the Parents’ case. The proposed exhibits were admitted to the record and are listed below, save that proposed exhibit P-O was a duplicate of IHO-II and was withdrawn for that reason (T. P28, L21-25).
In an opening statement at the IH, Parents’ representative, inter alia: Asserted that it is the Parents’ position that the DOE did not provide the Student with a free and appropriate public education (“FAPE”) for the 2021-2022 school year (“SY”), maintaining that a placement in a 15:1+1 would not provide enough support and individualized attention for the Student; asserted that due to the Student’s learning disorders, she required the support of two special education teachers and a small class throughout the school day; asserted that the Proposed School (defined on pg. 21) is inappropriate and would not meet the Student’s academic, social, and emotional needs; when the Parents contacted the Proposed School for the prior SY, they confirmed that the school does not offer a 15:1+1 class, which could still be the case for the 2021-2022 SY; asserted that the DOE would not meet its Prong I burden; asserted that the Attending School (defined on pg. 21) was appropriate, and did address the Student’s academic, social, and emotional needs; asserted that the Student made progress, and that the equities supported a finding in favor of the Parents as they cooperated with the DOE; and confirmed the relief sought (T. P26, L8-25; P27, L1-14; P30, L17-21).
PREVAILING PARTY
Parents are the prevailing party and an award or Order is granted in their favor.
LEGAL FRAMEWORK
The claims in the DPC relate to the Student’s special education program and placement for the 2021-2022 SY, asserting that based on numerous procedural and substantive grounds, the DOE failed to offer the Student a FAPE. Parents are seeking tuition funding for the cost of the Student’s placement at the Attending School for the 2021-2022 SY (Exhibit IHO-II-2).
A FAPE is offered to a student when (a) the DOE complies with the procedural requirements set forth in the IDEA, and (b) the Individualized Educational Programs (“IEP”) developed by its Committee on Special Education (“CSE”) through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits[5].
If a procedural violation is alleged, an impartial hearing 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[6].
The IDEA directs that, in general, an impartial hearing officer’s decision must be made on substantive grounds based on a determination of whether the student received a FAPE[7], and default judgments are disfavored by the federal courts[8]. A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction”[9].
School districts are not required to “maximize” the potential of students with disabilities[10], but must provide “an IEP that is ‘likely to produce progress, not regression,’ and... affords the student with an opportunity greater than mere ‘trivial advancement’”[11]. The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit”[12].
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, which exception applies in this case[13].
The DOE may be required to pay for educational services obtained for a student by the student’s parent(s), if the services offered by the DOE were inadequate or inappropriate, the services selected by the parent(s) were appropriate, and equitable considerations support the parent(s)’ claim[14].
FINDINGS OF FACT AND DECISION
Prong I - Denial of a FAPE:
In a recent case[15] that addressed a statute of limitations issue, the parent had relied upon the following failures by the DOE (the “Failures”): to hold an annual review for the student for the relevant SY; to provide the parent with prior written notice of a change, or lack thereof, to the student's IEP; to send a school location letter with a placement for the student for the relevant SY; and to produce an annual IEP by the first day of the relevant SY.
In that case, it was conceded by the DOE that the Failures had constituted the denial of a FAPE and, like this case, the DOE did not contest that it had denied the student a FAPE (in this case Prong I was not contested by the DOE in that it failed to appear for the IH). The IHO Decision, which was the decision being appealed, did not probe whether the denial of a FAPE was procedural, substantive, or both, but found that "the DOE's failure to present a case at the hearing is a concession that it denied the student FAPE....". The U.S. District Judge wrote, about the Failures, that in “any case, there were clearly both procedural and substantive violations of IDEA that amounted to the denial of a FAPE”.
In addressing the nature of the violation for failing to have a written IEP in effect by the first day of the school year (i.e., whether it is procedural or substantive), the U.S. District Judge wrote:
“Substantive violations of IDEA may include the failure to propose an IEP or deficiencies in the IEP itself. Id.; Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 238-39, 129 S. Ct. 2484, 174 L. Ed. 2d 168 (2009). School districts are required to have a written IEP in effect for each child with a disability by the beginning of the school year, 20 U.S.C. § 1414(d)(2)(A), and, in New York State, the school year begins annually on the first day of July. See N.Y. Educ. Law § 2(15). Thus, failure to provide a written IEP by July 1 constitutes a substantive denial of FAPE. C.W.L. and E.L. v. Pelham Union Free Sch. Dist., 149 F. Supp. 3d 451, 465 (S.D.N.Y. 2015)” (my emphases).
A district cannot abdicate its responsibility to develop an IEP based upon the unique circumstances of the Student[16]. If a district knows or has reason to believe that a student will require certain services, it must evaluate the student’s needs and offer appropriate supports in a timely manner[17]. The district has an affirmative obligation to offer the student a FAPE[18]. With certain exceptions, a student’s IEP is required to be reviewed periodically, but not less frequently than annually, and revised as appropriate[19].
The DOE did not present any evidence, documentary, or testimony, to substantiate a case that it offered the Student a FAPE for the 2021-2022 SY, having failed to avail itself of the opportunity to do so by failing to appear at the IH.
As such, there is no explanation, let alone a cogent and responsive one, for their decisions on record that shows that the Student’s IEP was reasonably calculated to enable the Student to make progress appropriate in light of her circumstances. This includes no IEPs, prior written notices, or school locations letters being provided in support of the DOE’s obligations having been met.
Parents expressly challenged the program (and consequently placement) recommendations, asserting in the ADPC inter alia that (Exhibit IHO-II-1; & -2):
“An annual review CSE meeting was held for this student on December 17, 2020. This student was classified as learning disabled and recommended for a 15:1 class for all academic subjects. This meeting was procedurally and substantively invalid resulting in a denial of a free, appropriate public education (FAPE). The team was invalidly constituted and failed to consider the appropriate evaluative data. In addition, the IEP fails to accurately and completely reflect the information presented to the IEP team such that the IEP does not adequately describe the child. The goals and objectives are insufficient and inappropriate, as are the management needs. The IEP therefore fails to provide sufficient and necessary supports and curricular modifications to enable the student to make progress. The goals could not be obtained within the DOE’s proposed program, nor could the IEP be properly implemented. In addition, the documentation before the team fails to support the recommendations within the IEP. This student requires intensive special education support in a small class in a small school setting in a full-time special education school due to her multiple learning disorders, as well as her receptive-expressive language delays. [Student] struggles with decoding, visual-perceptual weaknesses, mathematics disorder, and receptive-expressive language issues. As recommended by the doctors that have evaluated her as well as her teachers, she requires continuation in a small class in a small full-time special education school.
…
Another meeting was held for the 2021-2022 school year on November 29, 2021. This student was classified as learning disabled and recommended for a 15:1 class for all academic subjects. This meeting was procedurally and substantively invalid resulting in a denial of a free, appropriate public education (FAPE). The team was invalidly constituted and failed to consider the appropriate evaluative data. In addition, the IEP fails to accurately and completely reflect the information presented to the IEP team such that the IEP does not adequately describe the child. The goals and objectives are insufficient and inappropriate, as are the management needs. The IEP therefore fails to provide sufficient and necessary supports and curricular modifications to enable the student to make progress. The goals could not be obtained within the DOE’s proposed program, nor could the IEP be properly implemented. In addition, the documentation before the team fails to support the recommendations within the IEP. This student requires intensive special education support in a small class in a small school setting in a full-time special education school due to her multiple learning disorders, as well as her receptive-expressive language delays. [Student] struggles with decoding, visual-perceptual weaknesses, mathematics disorder, and receptive-expressive language issues. As recommended by the doctors that have evaluated her as well as her teachers, she requires continuation in a small class in a small full-time special education school.”
Whilst default judgments are disfavored by the federal courts, the DOE knew from the contents of the ADPC, as well as the Parents’ 10-day notice, that the Parents were taking issue with the program and placement recommendation. Parents’ evidence (addressed below) overwhelmingly supports a finding that the proposed program recommendations and placement recommendation in a 15:1+1 setting would not have been appropriate for the Student for the 2021-2022 SY. Accordingly, even if the DOE could have overcome the challenge to the Proposed School as an appropriate placement by showing that the facility in question was ready, willing, and able to implement the Student's IEP, that would still not have availed the DOE.
When considering that the burden is on the DOE for Prong I, without any evidence to gainsay the testimony of Mother and Parent’s Witness and the documentary evidence, the scales are tipped in favor of the Parents and the District has failed to overcome the Parents’ challenges to the appropriateness of a proposed program and placement recommendations. Accordingly, the Parents’ representative’s request for finding in favor of the Parents must succeed.
Parents have accordingly met the first criterion of test set out in Burlington/Carter for tuition funding.
Prong II - Appropriateness of the Parents’ Placement:
Parents have the burden of proving that the unilateral placement was appropriate. To meet this burden, 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”[20]. The private school placement however “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements”[21].
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”[22].
The Judges in the Gagliardo case wrote that “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”[23] (my emphases).
In both instances highlighted above, the focus is on the needs of the child, which are individual and unique, and that the placement must reasonably serve those needs to an extent that permits the child to benefit from the instruction.
Parental placements are not subject to the same mainstreaming requirements as a school district placement. The private placement need not provide certified special education teachers or an IEP.
Evidence:
Parents’ representative presented detailed testimony by Parents’ Witness and the Mother and submitted documentary evidence in support of the Parents’ position that the Attending School placement was appropriate.
Parents’ Witness provided testimony by affidavit (Exhibit P-N), testifying as to:
Her role, responsibilities at the Attending School and prior employment; her belief that Student's placement in Attending School was appropriate because it addressed Student’s educational needs; the Attending School’s offering and the students it is designed to serve; the multi-sensory methodologies approach adopted and the values upon which the school is founded; the differentiated instruction provided at the Attending School and how it enables individualized learning.
How all classrooms having a head teacher that holds a master’s degree and some classrooms have associate teachers holding at least a bachelor’s degree (with details provided for specific class of the Student’s teachers, their qualifications and the exact number of students enrolled in those classes); the academic curriculum being tailored to each academic group’s levels, needs and strengths, with the curricula consisting of research-based techniques that are based on New York State Common Core Standards with details being provided; and all the school’s teachers use of language modification techniques as well as a multi-sensory, hands-on approach to teaching, with a focus on building on each student’s strengths.
The approximate number of students enrolled in the Attending School for the 2021-2022 SY, which comprises the ninth through twelfth grades; with there never being more than twelve students in a class and that most classes being smaller than ten students; students receiving small group instruction in reading and math in addition to classes in writing, science, social studies, art, music, social/emotional learning, current events, college guidance and physical education.
How students attend small group classes for all subject areas based on the learning needs and styles of the students; how students are assigned to small advisory groups consisting of five to seven students, that meet at the beginning and end of each day and during a study hall period mid-day where their advisor - responsible for supporting students, having an overview of their academic functioning and support their executive functioning skills - checks in on outstanding assignments and to see whether additional support is necessary to complete and/or understand the concepts and assignments; how students are grouped into advisory groups by grade level and the social and emotional needs and abilities of the students.
The school’s classrooms being equipped with resources including interactive, assistive technologies to support students with a wide range of learning needs such as dyslexia, dysgraphia, attention deficits and expressive and receptive language delays; how the school employs small class sizes, a low student-teacher ratio and differentiated instruction based on each student’s individual needs, strengths, interests and abilities to accommodate all types of learners; the robust professional development program provided for all of its teachers, related service providers, administrators and other staff at our school; and how supervision meetings and administrative staff meetings take place weekly or bi-monthly to discuss individual students on a rotating basis, including any issues, struggles or concerns as they arise.
How the Student heavily relies on structure for written assignments (outlines, thoroughly scaffolded notes), which make a significant difference for her; how the Student often misunderstands content and structures and the key issues discussed, requiring a lot of support in developing ideas and repetition; how the Student requires preview, review, repetition, chunking, check-ins, development supporting ideas across the curriculum; how during class time the Student is prompted by teachers when to take notes; how the Student is supported in summarizing content taught into her own words and receives sentence starts and prompting; how the Student only sometimes grasps concrete in-text information, also struggling to retain information over any period of time, and with the significant support of previewed questions during reading, which was done aloud, the Student could sometimes make correct observations; and how the Student received re-reading and highlighting comprehension passages to help her find answers to comprehension questions, graphic organizers, word banks, sentence starters, visual schedules, multi-sensory models to teach a concept, or engagement in extension activities to teach skills such as supplemental exercises on websites.
Her familiarity struggles with the Student, who requires a substantial amount of individualized and time management support; her opinion that the Attending School provided the Student with a supportive, nurturing environment where she was encouraged to question, communicate and recognize her special needs; the Student’s delays in vocabulary knowledge, abstract verbal reasoning skills, and phonemic fluency, as well as her struggles with working memory, processing speed, sustained attention, inhibition, mental flexibility, and executive functioning issues.
The layers of support the Attending School instituted to help the Student, in response to her multiple delays, to manage her work and learn to be more organized and independent; how the Student still experiences considerable difficulty in all academic areas due to her Student’s Diagnoses (defined on pg. 21); how the Student consistently struggles with her ability to recall information and self-advocate for herself in certain situations; a typical school day for the Student, speaking to the modifications to the curriculum that were necessary for Student to support her; how in addition to the support that Student regularly received through the school’s advisory program, she had access to a team four school counselors who were “on call” and available any time she needed them throughout the school day; how the Student checked in relatively regularly with counselors, approximately once or twice a week throughout the year to support her with social-emotional support, peer relationships, and strategies to support her learning and coping strategies.
How, in her professional opinion, the Student continued to require a full-time special education program with differentiated instruction to address the academic, executive functioning and social needs arising out of her multiple diagnoses and learning disabilities; how Student frequently displayed good ideas in the classroom and was a creative and inspired thinker, however, that she also demonstrated ongoing difficulty in organizing her thoughts and developing an approach when assignments called for her to engage her problem-solving skills; how Student needed sustained teacher support in planning out her assignments on a daily and weekly basis as well as specialized curricula to develop her writing skills; how Student required consistent teacher check-ins as she moved through academic work to provide gentle redirection and to talk through problems as they arose.
How the Student needed encouragement and reminders to continue developing her awareness of when she was struggling, so that she can advocate for herself and obtain teacher assistance and/or clarification; how without these supports, the Student would quickly become overwhelmed by the academic demands of the high school curriculum and run the risk of shutting down; and that the Attending School has provided Student with the individualized instruction she needed in a small, supportive setting, designed to help her maintain cognitive control; how her teachers understood how to help her manage her learning difficulties and taught her strategies to overcome weaknesses that hindered her planning and organization; and that she believes that the Attending School was an appropriate placement for Student during the 2021-2022 academic year.
Mother provided testimony by affidavit (Exhibit P-M), testifying as to:
The Student’s struggles, speaking to Student’s Diagnoses, and how these impacted her in different ways; her attendance at the IEP meeting in December 2020, the attendees, what was discussed, the placement setting proposed and her concerns that were expressed; the notice received recommending the Proposed School and her attempts to contact the school; and her 10-day notice sent to the DOE.
The second IEP held on November 29, 2021, the attendees, what was discussed, the same placement setting proposed by the DOE and her concerns that were expressed; how she would have considered an appropriate program if one had been offered for the 2021-2022 SY, and that the tuition contract allowed for withdrawal in those circumstances; but that no such placement was forthcoming.
How the Student continues to require placement at the Attending School; how the Student needs the small classes (7:1 ratio), small school setting and the individualized instruction that are critical for her; how she sees the struggles that the Student still has even in the full-time special education program at the Attending School, still needing 1:1 support and extensive intervention to help teach her executive functioning skills; and how the small size of the school makes focusing on learning new information and making meaningful progress less challenging.
How throughout the 2021-2022 SY the Student made “clear progress” at the Attending School, which she attributed to the individualized 1:1 attention she received due to the low teacher-student ratio and the many supports she received; how the Student received a program that was tailored to meet her where she was both academically and socially; and how the Attending School prepared her to move forward as a student and understand how to support and advocate for her needs.
How she feels that overall, the Attending School appropriately met the Student’s needs for the 2021-22 SY.
I find that the Student’s program is specifically designed to cater to various classes or categories of students, and that the program is specifically designed for students, like the Student, “who need intensive support for their learning difficulties, small classes with a low number of students, specialized teaching methodologies, a multi-sensory approach to learning and a challenging curriculum to empower them to think creatively, achieve academically and become contributing members of society” (Exhibit P-N-1, par. 6). A significant focus of the program, including the learning methodologies and the supports provided, are designed to meet the needs of this class or category of student. Based on the evaluating neuropsychologist’s (“Neuropsychologist”) evaluations and findings, the Student falls in this class or category (Exhibit P-J).
Additionally, there is detailed uncontested evidence presented by Parents’ Witness substantiating how the Student’s teachers specifically tailored the already specialized program – for this class or category of student – even further for this Student’s unique and individual needs.
The evidence on record, which was not disputed through any testimony, let alone any expert testimony contradicting the clear recommendations of the Neuropsychologist or Parents’ Witness, supports the Parents’ representative’s assertion that the Attending School is an appropriate placement for the Student, including: it being a full-time postsecondary placement in a small, structured, and supportive educational environment designed for students learning disabilities; including a low student to teacher ratio so that the Student can receive daily, individualized instruction, as well as curricular and instructional modifications to meet her needs in all academic areas; daily, explicit, systematic, and research-supported instruction (Exhibit P-H, & -J).
The testimony of the Parent and Parents’ Witness, and the Parents’ documentary evidence (Exhibits P-D through P-I) establishes that the Attending School was appropriate and provided the Student with educational instruction that was specifically designed to meet the Student’s unique special education needs, supported by such services that were necessary to permit her to benefit from instruction for the 2021-2022 SY.
I also find that, based on the Student’s attendance at the Attending School for the SY in question, as testified to by the Parent and Parents’ Witness, the Student made progress during the 2021-2022 SY, (Exhibit P-M, & -N). This is also supported by the contents of the Attending School’s progress reports (Exhibit P-I).
The Parents have therefore met the second criterion of the test set out in Burlington/Carter for tuition funding.
Prong III - Equitable Factors:
Equitable considerations are relevant to fashioning relief under the IDEA[24].
The IDEA also provides that reimbursement may be reduced or denied when parents fail to challenge 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[25].
The IDEA allows that 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 removing the student from public school, or by written notice 10 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”[26].
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”[27].
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[28].
The hearing record reflects that the Mother notified the CSE by letter dated August 22, 2021, of their intention to place the Student at the Attending School and seek public funding for the 2021-2022 SY (Exhibit P-B-1). An email confirmation of receipt by the DOE of the Parents’ 10-day notice is attached to the letter (Exhibit P-B-2).
I find that in this letter the Parents offered sufficient information to put the DOE on notice about the Parents’ concern regarding the CSE’s failure to make an appropriate program and placement recommendation and informed of the Parents’ intention to place the Student at the Attending School for the 2021-2022 SY, giving the District an opportunity to cure any deficiencies, which is the intent underlying the 10-day notice requirement[29].
It is apparent from the record that the Mother signed a contract electronically enrolling the Student in the Attending School prior to the start of the 2021-2022 SY, namely on February 17, 2021 (Exhibit P-D-6).
The Second Circuit has however explained that, so long as parents cooperate with the CSE, “their pursuit of a private placement [i]s not a basis for denying their [request for] tuition reimbursement, even assuming... that the parents never intended to keep [the student] in public school”[30].
No evidence was presented that demonstrated that the Parents did not cooperate with the DOE or failed to challenge the appropriateness of an IEP in a timely manner, or failed to make their child available for evaluation by the District or had undertaken some or other unreasonable actions or conduct.
Parents have therefore met the third criterion of the test set out in Burlington/Carter for tuition funding. Having met all three criteria of the Burlington/Carter test, the Parents are entitled to funding for the cost of the Student’s placement at the Attending School for the 2021-2022 SY.
Amounts Claimed:
Parents filed an affidavit by the Attending School’s Senior Account (“Affiant”), wherein the Affiant confirmed the total annual tuition contracted rate of $73, 174.00 owing to the Attending School for the 2021-2022 tuition for the Student’s enrolment, of which $2,000.00 was paid, leaving an outstanding balance of $71,174.00 (Exhibit P-C). Proof of Parents’ payment is included in the record (Exhibit P-G).
Mother confirmed in her affidavit that the tuition for the Attending School was $73,174.00 for the 2021-2022 SY, that this tuition had not been paid in full because she spoke with the school, and that they were willing to have the Student as a “Connor’s case”. Mother also testified that her tax returns are included as exhibit L, and that she understands that she is responsible for the full tuition if she loses the case (Exhibit P-M).
I do not find that the aforesaid tuition rate excessive or unreasonable, given what is offered by the Attending School as part of the program[31]. It is however stated in the enrollment contract that “While Parent Association dues of $225 is included in this amount, it contains no other incidental fees beyond tuition” (Exhibit P-D-1). This amount is therefore being deducted from Parents’ tuition reimbursement claim.
As the Parents are seeking tuition funding in the form of reimbursement for the amount paid by the Parent, as well as direct funding (T. P30, L17-21), a case for direct funding based upon need is required to be supported by the record. Based on Parents’ tax return (Exhibit P-L), this has been established.
The SY is over and therefore transportation is no longer an issue. Other than the relief set out in my Order below, I find that no basis and/or evidence in the record supports any additional relief.
ORDER
Based upon the above Findings of Fact, it is hereby:
- • ORDERED that, the DOE shall directly fund the Student’s placement at the Attending School for the 2021-202 school year, by making payment directly to the Attending School a sum of $71,174.00 (Seventy-One Thousand, One Hundred and Seventy-Four Dollars), minus any payments already made by the DOE to the Attending School for the Student’s tuition for the 2021-2022 school year under or in terms of an Order on Pendency (if applicable).
- • FURTHER ORDERED that, the DOE shall reimburse the Parents part of the tuition deposit payment made to the Attending School for the Student’s placement at the Attending School for the 2021-2022 school year, the sum of $1, 775.00 (One Thousand, Seven Hundred and Seventy-Fifty Dollars).
SO ORDERED.
DATED: June 19, 2022
__H.A.C._(Signed Electronically)___
Impartial Hearing Officer
Harry A. Christodoulou
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.
DISTRICT EVIDENCE
Exhibit
Title
Date
Pages
-
-
-
-
PARENT EVIDENCE
Exhibit
Title
Date
Pages
A.
Due Process Complaint
02/11/2022
4
B.
Letter to CSE and Proof of Receipt
08/22/2021
2
C.
Affidavit of Payment
10/14/2022
1
D.
Contract for Attending School
02/17/2021
6
E.
Attendance Record
05/4/2022
1
F.
Class Schedule
2020-2021
1
G
Proof of Payment
02/24/2021
1
H.
Description of Attending School
Undated
2
I.
Attending School Progress
03/__/2022
7
J.
Neuropsychological Report
08/06/2021
16
K.
Proof of Payment (duplicate of exhibit G)
02/24/2021
1
L.
2020 Tax Return
04/01/2021
2
M.
Mother’s Testimony Affidavit
05/25/2022
5
N.
Attending School’s Parents’ Witness’s Testimony Affidavit
05/31/2022
7
O.
Withdrawn
-
-
IHO EVIDENCE
Exhibit
Title
Date
Pages
I
DPC
02/11/2022
4
II
ADPC
02/11/2022
3
III
IHO Email to District
04/06/2022
1
IV
Order: Leave to Amend
04/14/2022
8
V
Order on Consolidation
05/09/2022
7
APPENDIX
REDACTED
Footnotes
[1] U.S.C. § 1400 et seq.
[2] C.F.R. § 300 et seq.
[3] Educ. Law Art. 89 § 4404 et seq.
[4] NYCRR § Part 200.
[5] Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005].
[6] U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007].
[7] U.S.C. § 1415[f][3][E][i].
[8] See Branham v. Govt. of the Dist. of Columbia, 427 F.3d 7, 11-12 [D.C. Cir. 2005]; G.M. v. Dry Creek Joint Elementary Sch. Dist., 595 F. App'x 698, 699 [9th Cir. 2014]; Jalloh v. Dist. of Columbia, 535 F. Supp. 2d 13, 19-20 [D.D.C. 2008]; and Sykes v. Dist. of Columbia, 518 F. Supp. 2d 261, 267 [D.D.C. 2007], as well as Application of a Student with a Disability, Appeal Nos. 20-167; 20-203 and 21-032.
[9] Rowley, 458 U.S. at 203.
[10] Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998], at 132.
[11] Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130.
[12] Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192.
[13] NYS Educ. Law § 4404(1)(c).
[14] School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; See also Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 [2d Cir. 2006], cert denied, and Board of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 WL 2982269 [Oct. 15, 2007],
[15] In L.B., ex rel. E.B., v. New York City Dep’t of Educ. (122 LRP 8348) (U.S. District Court, Southern District of New York) (21-CV-1033 (VEC)) (03/08/22).
[16] In re: Student with a Disability New York State Educational Agency (51 IDELR 295) 08-026 (108 LRP 34384) (2008).
[17] In re: Student with a Disability New York State Educational Agency.
[18] (20 U.S.C. § 1400[d][1][A]; Schaffer, 546 U.S. at 51; Rowley, 458 U.S. at 180-81; Frank G., 459 F.3d at 371).
[19] (20 U.S.C. § 1414[d][4][A]; 34 C.F.R. § 300.324[b][1][i]; see also Educ. Law § 4402[2]; 8 NYCRR 200.4[f].
[20] Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 [2d. Cir. 2007].
[21] Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d. Cr. 2006].
[22] Gagliardo, 489 F.3d at 115.
[23] Gagliardo, 489 F.3d at 112 (quoting Frank G., 459 F.3d at 364-65).
[24] Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826 [2d Cir., 2014]; 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"].
[25] U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; see S.W. v. New York City Dep't of Educ., 646 F. Supp. 2d 346, 362-64 [S.D.N.Y. 2009]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181, at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 192 Fed. App'x 62, 2006 WL 2335140 [2d Cir. Aug. 9, 2006]; Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-61 [S.D.N.Y. 2005]; see also Voluntown, 226 F.3d at 69 n.9; Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001].
[26] U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1].
[27] Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004].
[28] 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. v. Bd. of Educ., 459 F.3d 356, 376 [2d Cir. 2006]; Voluntown, 226 F.3d at 68; Lauren V. v. Colonial Sch. Dist., 2007 WL 3085854, at * 13 [E.D. Pa. Oct. 22, 2007].
[29] Greenland Sch. Dist., 358 F.3d at 160.
[30] C.L., 744 F.3d at 840.
[31] Florence County School District Four v. Carter, 20 IDELR 532 (U.S. 1993).