New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 569998 - NYC: 224479

FINDINGS OF FACT AND DECISION

Student’s Name: REDACTED

Date of Birth: REDACTED

Hearing Requested By: Parent

Dates of Hearing: January 30, 2023 and March 1, 2023 Record Closed Date: March 1, 2023

Hearing Officer: Audrey Daniel, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

Names and Titles of Persons who appeared at the January 30, 2023 Hearing

For the REDACTED

None

For the Parents:

REDACTED, Esq., Attorney for Parent

Names and Titles of Persons who appeared at the March 1, 2023 Hearing

For the REDACTED

REDACTED, Esq., District Representative

For the Parents:

REDACTED, Esq., Attorney for Parent

REDACTED, Parent

REDACTED, Parent

I. Introduction and Procedural History

On May 16, 2022, I was appointed to conduct an impartial hearing pursuant to 20 U.S.C. §1415, regarding the special education program of REDACTED ("Student") brought by his parents (“Parent” or “Parents”). A pre-hearing conference was held on June 1, 2022, status conferences were held on June 30, 2022, August 29, 2022, September 29, 2022, October 25, 2022, November 29, 2022, and January 3, 2023. Hearings were held on January 30, 2023, and March 1, 2023. The REDACTED (“REDACTED”) was represented by REDACTED, Esq. and Parent was represented by REDACTED, Esq.. During the course of the proceedings, the parties moved to extend the case compliance date in this matter, all in order to allow for settlement negotiations and an examination of all relevant witnesses and documents, and to complete the hearing. In considering those requests, I weighed the cumulative impact of the relevant factors and found that, in allowing for adequate time for such purposes, the delays in the resolution of the matter and the extensions of time for such purposes were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The hearing record was closed effective March 1, 2023.

II. Background

Student presently attends the REDACTED (“REDACTED”). Parent filed a due process complaint on February 14, 2022, alleging a denial of a Free and Appropriate Public Education for the 2020-2021 and 2021-2022 school years, and requesting tuition at the REDACTED School. (Exh. A). There were two days of hearing. The REDACTED did not submit evidence or otherwise present a case. Parent provided affidavit testimony of a representative from the REDACTED School and Parent. (Exh. L and Exh. M). Both witnesses were available for cross examination during the final day of hearing.

III. Discussion

FINDINGS OF FACT AND DECISION

FINDINGS OF FACT

An Individualized Education Program (“IEP”) meeting was developed on June 26, 2020 and another IEP was allegedly developed, but not received by Parent on June 17, 2021. (Exh. A). The IEPs are not in evidence. The REDACTED did not defend its recommendations, and no further analysis of the IEPs is necessary.

Student attended REDACTED for the 2021-2022 school year. REDACTED is an independent school for students who are severely disabled, including students with traumatic brain injuries, multiple disabilities, vision impairments, cognitive delays and other medical conditions; many use wheelchairs and augmentative and alternative communication devices to communicate as they are nonverbal. (Exh. K and Exh. L, page 2). The school offers a twelve-month school year, and group students by age, developmental level and ability to learn and interact in the classroom. (Exh. L, page 3). There were eleven classrooms, 77 students age 5-21, and eleven teachers, two nurses, 14 speech language pathologists, 13 physical therapists, 13 occupational therapists, 77 paraprofessionals, 6 teachers of the visually impaired, 2 social workers, 2 hearing teachers, and adaptive technology specialist, and directors of assistive technology and speech and language pathology. (Exh. L, pages 2,3). There are small classes with low student to teacher ratios, ranging from 6 to 8 students; each student has a paraprofessional assigned. (Exh. L, page 4). The school used a variety of curriculum, including Melville to Weville, Equals, a Response to Intervention type-model, and an intensive Activities of Daily Living program. (Exh. L, pages 4-5). Related services such as occupational therapy, physical therapy, speech and language therapy and vision therapy are provided as needed by licensed professionals. (Exh. L, pages 4,5). There is a full time music therapist and a transition services are provided. (Exh. L, page 9). Quarterly progress reports are provided based on thorough assessments of students’ needs. (Exh. L, page 6). There is a collaborative, interdisciplinary team for each student. (Exh. L, page 6). Significant professional development is provided. (Exh. L, page 10).

Student began attending REDACTED for the 2021-2022 school year after assessment by the school’s multidisciplinary team. (Exh. D and Exh. L, page 11). Student is non-verbal and REDACTED and has a complex profile which includes a diagnoses of autism spectrum disorder, global development delays and REDACTED. His cognitive functioning is in the profound range of intellectual disability. (Exh. L, page 12). He presents with aggressive behavior issues and is ambulatory with support. (Exh. L, page 12). Prior to the start of the school year, Student was assessed by a special education teacher, occupational therapist, physical therapist, REDACTED therapist. and speech-language pathologist. (Exh. D, Exh. E and Exh. L, page 13). An individualized program was developed to meet his specific needs, including related services. (Exh. L. page 13). Goals and objectives were developed and monitored in each domain. (Exh. L, page 16). Student’s schedule included an 8:1:1 classroom with full time paraprofessional, speech and language therapy 1:1, 5 x60 per week, occupational therapy 1:1, 4 x 60 per week, physical therapy 1:1, 3 x 60, vision education therapy, 1:1, 3 x 60 per week, and monthly parent counseling for sixty minutes, as well as assistive technology, morning meeting, literacy, math, social studies, science, ADL and social skills development. (Exh. J and Exh. L, pages 14, 17). Student’s full time paraprofessional provided necessary support through all classes, related services, other activities and transition. (Exh. M, page 3). A nurse provided necessary care to address Student’s significant health challenges. (Exh. L and Exh. M).

Student made progress during the 2021-2022 school year. (Exh. E and Exh. G). Classroom participation and engagement improved, he made progress in his literacy skills, writing goals, math, social interaction, and in related services. (Exh. E, Exh. G and Exh. L). Parent testified regarding Student’s progress in social skills, communication and literacy. (Exh. M, page 3).

Parent signed an enrollment contract on or about June 16, 2021. (Exh. H). Parent has paid $750 towards tuition but cannot afford to pay the rest. (Exh. I and Exh. M).

Parent submitted the required Ten-Day Notice on June 17, 2021. (Ex. B). The REDACTED declined to offer Parent a settlement based on the Ten-Day Notice. (Exh. C). Parent filed due process complaint on February 14, 2022. (Exh. A).

FAPE

The IDEA was enacted to “to ensure that all children with disabilities have available to them a free appropriate public education” (“FAPE”) and to ensure that the rights of children with disabilities and parents of such children are protected.” 20 U.S.C. sec. 1400(d)(1)(A), (B). See also, Forest Grove Sch. Dist. v. T.A., 557 U.S. 2330, 239-40 (2009). Under this statute is the requirement that the education to which access is provided be sufficient to confer some education benefit upon the disabled child. In deciding whether the school district provided as student a FAPE, the inquiry is limited to (a) whether the school district complied with the procedures set forth in IDEA; and (b) whether the student’s IEP is reasonably calculated to enable the student to receive education benefit. Bd. of Educ. v. Rowley, 458 U.S. 176, 179-191 (1982).

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). In Endrew F. Douglas County School District RE-1, 580 U.S. ___, 137 S.Ct. 988 (2017), the Supreme Court held that in or order “to meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances. Id. At *10. While the statute ensures an "appropriate" education, it does not guarantee "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, 486 Fed. App'x 954 (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).

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. New York City Bd. 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).

BURDEN OF PROOF

The burden of proof is on the REDACTED to show that the provided IEP provided FAPE, except in cases involving a unilateral placement, where the parent must prove the appropriateness of the unilateral placement. N.Y. Educ. Law § 4404(1)(c); see also Application of a Student with a Disability, Appeal No. 12-062; Application of a Student with a Disability, Appeal No. 11-053; Application of a Student with a Disability, Appeal No. 11-091.

The REDACTED conceded that FAPE was not provided. (Tr. 56). Therefore, the REDACTED did not meet its burden of proof and Parent is entitled to relief.

APPROPRIATENESS OF THE PRIVATE SCHOOL

Once it is determined that the student has not been provided a FAPE, under New York law, the burden of proof shifts to the parents to show that their unilateral private placement was appropriate. A.D. v. Bd. of Educ. of City Sch. Dist. of City of New York, 690 F. Supp. 2d 193, 206 (S.D.N.Y. 2010) (citing Schaffer, 546 U.S. at 58; N.Y. Educ. L. § 4404(1)(c)). Under the IDEA, parents who unilaterally place their child in a private school do so at their financial risk. Individuals with Disabilities Education Act, §§612(a)(1)(A), 614(d).

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 192). "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 appropriateness of the parents’ choice turns on whether the chosen school “is reasonably calculated to enable the child to receive educational benefits.” Gagliardo v. Arlington Central School District, 489 F.3d 105, 112. A private placement meeting this standard is “one that is ‘likely to produce progress, not regression.’” Id. (quoting Walczak, 142 F.3d at 130). The parents’ choice must be “appropriate,” “not . . . perfect.” Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006). An appropriate private placement “need not meet state education standards or requirements.” Id. (citing Carter, 510 U.S. at 14). Ultimately, the standard to be applied is to determine whether “[the] unilateral private 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 115. The Second Circuit in Frank G, 459 F.3d at 364-5 held: “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.” the private school must provide an educational program which meets the student's special education needs (see Hardison v. Bd. of Educ., 773 F.3d 372, 386 [2d Cir. 2014]; Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129; Matrejek, 471 F.Supp. 2d at 419).

Parent has shown, through testimony, and documentation, that REDACTED understands Student’s unique educational needs and designed a program to address these needs. Therefore, Parent has met his burden of proof to show the appropriateness of the unilateral placement and is entitled to reimbursement for his unilateral placement.

BALANCING OF THE EQUITIES

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 (20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; see 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]). The final criterion for a reimbursement award is that the parents' claim must be supported by equitable considerations. (Burlington, 471 U.S. at 374; M.C. v. Voluntown, 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"]). With respect to equitable considerations, the IDEA also provides that reimbursement may be 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]; 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"]).

There is nothing in the record indicating a need to change the balancing of the equities. Parent contacted the Committee on Special Education to voice concerns regarding the IEP and proposed placement and sent the required Ten-Day Letter. (Exh. B and Exh. M). There are no allegations of obstruction or that Parent was uncooperative. Therefore, Parent is entitled to the entirety of tuition for the 2021-2022 school year.

Parent also requests special education transportation in the due process complaint. (Exh. A). It is clear from the evidence and testimony that Student needs considerable assistance to travel, and the REDACTED did not object to Parent’s request. (Exh. A and Exh. L). Therefore, I order the REDACTED to provide special education transportation as requested by Parent.

IV. Order

IT IS THEREFORE ORDERED THAT:

1. The REDACTED failed to provide Student a Free and Appropriate Public Education for the 2020-2021 and 2021-2022 school years.

2. The REDACTED shall fund and/or reimburse Parent for tuition at the REDACTED for the 2021-2022 school year within thirty days of receipt of invoice, proof of payment and/or proof of attendance.

3. The REDACTED shall provide round-trip special education transportation for the 2021-2022 school year.

Dated: March 14, 2023

AUDREY DANIEL, ESQ.

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.

EXHIBITS ADMITTED AT HEARING

District

None.

Parent

EXHIBIT DATE DOCUMENT No. of

A. Due Process Request 2/14/22 6 pages

B. Ten Day Notice 6/17/21 5 pages

C. REDACTED Ten Day Decision 7/6/21 1 page

D. REDACTED Intake Summary 5/24/21 6 pages

F. E Oct.- Initial REDACTED Reports 43 Nov. 2021 REDACTED Orientation and Mobility Report 11/8/21 4 pages

G. REDACTED 21-22 progress reports 6/27/22 11 pages

H. REDACTED 21-22 Enrollment Contract 6/16/21 5 pages

I. REDACTED Affidavit 9/22/21 1 page

J. 2021- REDACTED 2021-2022 Student Schedule 2022 2 pages

K. 2021- REDACTED Program Description for 2021-2022 2022 10 pages

L. Affidavit of REDACTED 2/20/23 22 pages

M. Affidavit of REDACTED Impartial Hearing Officer None. 2/26/23 4 pages