New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 570906 - NYC: 225058

FINDINGS OF FACT AND DECISION

Case Number: 225058

Student’s Name^[1] [REDACTED] (“Student”)

Date of Birth: [REDACTED]

School District: [REDACTED]

Hearing Requested by: [REDACTED] (“Parents”)

Request Date/Date Complaint Filed: March 10, 2022

Date(s) of Hearing: August 22, 2022; October 19, 2022

Actual Record Closed Date: October 28, 2022

Date of Decision: November 11, 2022

Hearing Officer: Lisa S. Rusk, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 22, 2022

For the Student:

[REDACTED], Attorney

For the Department of Education:

[REDACTED], District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 19, 2022

For the Student:

[REDACTED], Attorney

[REDACTED], Parent

[REDACTED], Parent

[REDACTED], Principal, [REDACTED]

For the Department of Education:

No one

INTRODUCTION AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) by Parents’ Due Process Complaint (“DPC") dated March 9, 2022 and filed on or about March 10, 2022 (Ex. P-A)^[2]. The DPC alleges the District failed to provide a Free Appropriate Public Education (FAPE) to the Student for the 2021-22 school year and seeks reimbursement/direct payment for the Parents’ unilateral placement of the Student at the [REDACTED] or [REDACTED] (hereinafter referred to as “the private school”). There is no record of a response to the DPC by the District. The undersigned was appointed as impartial hearing officer (“IHO”) on May 31, 2022. Notice of a prehearing conference on June 6, 2022 was sent to both parties via email on May 31, 2022. The prehearing conference was held on June 6, 2022. A status conference was held on July 25, 2022. The hearing commenced on August 22, 2022. [REDACTED] represented the Parents, and [REDACTED] represented the District. Parent Exhibits A-G were admitted into evidence. The District did not introduce any exhibits. At the request of the parties, a status conference was held on September 23, 2022. [REDACTED] appeared on behalf of the Parents, and [REDACTED] appeared on behalf of the District. The matter had not resolved, so the hearing was scheduled to continue on October 19, 2022 at 1:00 pm.

On October 19, 2022, [REDACTED] appeared on behalf of the Parents. No one appeared on behalf of the District. This IHO sent an email to the District inquiring as to whether anyone would be appearing on behalf of the District and received no response. The hearing date was scheduled with both parties on September 23, 2022, and no request for an adjournment was made on behalf of the District. As such the hearing went forward on October 19, 2022 in absentia. It was a closed hearing.

The Parents submitted eight additional exhibits into evidence for a total of 15 exhibits (Exs. P - A-P)^[3], including 2 witness affidavits. The Parents’ attorney made a closing statement on the record. The IHO received no communication from the District following October 19, 2022.

The record was closed on October 28, 2022.

JURISDICTION

The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.

BACKGROUND

The Student is a [REDACTED] year old female who was unilaterally placed at the private school by the Parents for the 2021-22 school year. The Student has been classified as a student with a disability by the District’s Committee on Preschool Special Education (CPSE). The DPC alleges that the CPSE failed to meet and develop an Individualized Education Program (“IEP”) for the 2021-22 school year.

ISSUES

The Parents allege that the District failed to hold a CPSE meeting to develop an IEP and recommend a placement for the 2021-22 school year in a bilingual Yiddish CPSE program. The Parents allege they were forced to unilaterally place her in the private school (Ex. P-A-1).

The Parents seek funding/reimbursement for their unilateral placement at the private school.

FINDINGS OF FACT

The Parent described the Student as a very impaired young girl who is globally delayed. She is diagnosed with Autism Spectrum Disorder, Developmental Delay, Apraxia and Seizure Disorder. Her delays are physical, academic and social. She is non-verbal and unable to participate independently in age-appropriate daily activities. When she transitioned from Early Intervention to the CPSE in 2020-21 the CPSE recommended a twelve-month bilingual Yiddish 8:1:2 class, but never identified an appropriate center-based program. The Parents placed her at the private school for 2020-21. The CPSE never reconvened to recommend a program for the 2021-22 school year. As such, the Parents again placed her at the private school (Ex. P-I-1).

The Parent advised the District in writing on June 18, 2021, that she had not been contacted for a new IEP meeting or offered a placement for the 2021-22 school year. As a previously recognized 12 month student, her school year was to begin in July of 2021. The Parent stated to the District that she intended to enroll the Student in the private school and seek funding from the District (Ex. P-B-1). The Parent received no substantive response from the District (Ex. P-I-1). There is no evidence that a CPSE meeting was ever held for the Student for the 2021-22 school year. The Parent testified that the Student made tremendous progress at the private school with its small class size and individual attention. She became much more engaged, more aware of her environment and started to have more focus. She started to connect to peers and made her first friend (Ex. P-I-2).

The principal of the private school testified that she is certified in the State of New York as a school building leader and special education teacher with Yiddish extension (Ex. P-J-1). She testified that the Student entered the program in 2020-21 as a CPSE student. In 2021-22 she was enrolled in a 6:1:2 class with students with similar delays. As principal she worked with the Student’s teachers, monitored her progress and worked with her directly. The Student presents with neurological and global delays and is non-verbal. Due to her multiple diagnoses, she is extremely uncoordinated and has poor motor planning. She is always on high alert, very anxious and frequently dysregulated. At the beginning of the school year, she was unable to participate in classroom activities due to her dysregulation. The private school utilized the DIR Floortime model, a daily schedule and “sensory diet” supports to help regulate her. This helped her to calm her body and make her available to learn (Ex. P-J-3-4).

The private school provided support with activities of daily living, including feeding, which enabled her to communicate her needs and wants at mealtime using gestures. She also made a great deal of progress in her ability to participate in morning circle and learned to refocus her body and be part of a group activity. (Ex. P-J-4). By the end of the year, she was more able to explore new toys without going into high alert. Although not toilet trained, she began to show awareness of when she was wet or dirty. Although her coordination remained inconsistent, she improved her ability to move while around the other students (Ex. P-J-5).

The Student worked on the prerequisite skills needed in order to utilize an augmentative communication device. She gained an understanding of the concepts of counting, colors and basic categorization and learned to answer yes/no, where and “what would I use to” questions with gestures (Ex. P-J-5). She learned a basic understanding of pretend play and made her first friend which was a huge step for her socially (Ex. P-J-6; T:79).

She received speech (3x30x1), occupational (3x30x1) and physical (3x30x1) therapies and made progress working with all of her related service providers (see Ex. P-J-7 and Exs. P-L, M and O). Generally speaking, over the course of the year, the Student improved in her ability to communicate her wants and needs, to learn from her environment, to take in information being taught to her and to tolerate new experiences without being overwhelmed. She also developed her first friendship. (Ex. P-J-7; T:77-80). The principal attributed the progress to the staff, intensive support, small class size and individualized approach (Ex. P-J-7).

The Parents signed the contract for tuition and transportation for the 2021-22 school year on June 1, 2022 (Ex. P-C)^[4]. The Parent and her husband testified that she was unable to directly pay the full cost of the private school (Ex. P-I-2; T:61). She stated that in accordance with the contract she was fully liable for the tuition. The family paid $2,500 of the $120,000 tuition. The family was also liable for specialized transportation in the amount of $21,000 (Ex. P-I-2). According to their tax return, the Parents had no taxable income in 2020 (Ex. P-H and P).

CONCLUSIONS OF LAW

The Individuals with Disabilities Education Act (IDEA) provides that children with disabilities are entitled to a FAPE (20 U.S.C. § 1400 [d][1][A]). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written IEP (34 C.F.R. § 300.13). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances” Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988 (2017). If a procedural violation has occurred, relief is warranted only if the procedural violation affected the student's right to a FAPE. 8 NYCRR §200.5[4]; J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 (2d Cir. 2000).

In New York State, school districts have the burden of proof, including the burden of persuasion and burden of production in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement or payment for services for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement (NYS Educ. Law § 4404(1)(c)). (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School Dist. Four v. Carter, 510 US 7 [1993]). In addition, in order to receive tuition reimbursement, the equities must weigh in favor of the parent.

Since the District in this case has failed to demonstrate it offered the Student a FAPE under the First Prong of the Burlington/Carter test, the burden shifts to the Parents to prove that the services provided by the private school are appropriate to meet the Student’s special education needs and that the equities weigh in the Parents’ favor.

In order to meet their burden, the Parents must establish, by a preponderance of the evidence, that the unilateral placement provided “educational instruction specifically designed to meet the unique needs of the student” (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 [2d. Cir. 2007]. However, the private school placement “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements” (Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d. Cr. 2006]. The private placement need not provide certified special education teachers or an IEP. Parental placements are not subject to the same mainstreaming requirements as a school district placement. The private school placement must be reasonably calculated to enable the child to receive educational benefits, and must be likely to produce progress, not regression.

The standard to apply is whether "[the] unilateral private placement... provides educational instruction specifically designed to meet the unique needs of a handicapped child" Gagliardo, 489 F.3d at 115):

No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. Gagliardo. 489 F.3d at 112 (quoting Frank G, 459 F.3d at 364-65).

Finally, equitable factors must weigh in the favor of the parents in order to qualify for an award of tuition reimbursement.

Where parents “lack the financial resources to ‘front’ the costs of private school tuition, and in the rare instances where a private school is willing to enroll the student and take the risk that the parents will not be able to pay tuition costs – or will take years to do so- parents who satisfy Burlington factors have a right to retroactive direct tuition payment relief” (Mr. and Mrs. A. v. New York City Dept. of Educ., 769 F.Supp. 2d 403,428 [SDNY 2011].

ANALYSIS

Based upon a thorough review of the testimony and evidence as outlined above, I find that the District failed to meet its burden that it offered the Student a FAPE for the 2021-22 school year, and the Parents have met their burden of demonstrating that the private school provided the Student with specific instruction to address her special education needs while enabling her to make meaningful educational progress in early learning, communication and social skills commensurate with her significant educational disabilities. Although the record is sparse, and no District IEP or testing was introduced into evidence^[5], the testimony and exhibits sets forth evidence of the provision of specific instruction by the private school to meet the Student’s needs. The uncontroverted testimony was that she made progress in the private school program. That progress was commensurate with her global delays and extensive needs. The testimony also was uncontroverted that she required the door to door transportation to get to and from school (T:81).

Turning to the equities, the record evidence indicates that the equities weigh in the favor of the Parents. They timely advised the District of their dissatisfaction with its failure to offer an appropriate program and placement for the 2021-22 school year and of their intent to seek tuition reimbursement (Ex. P- B).

The Parents submitted into evidence in support of direct funding of the services the Parents’ 2020 tax return. The family has four children. The tax return reflects no taxable income (Exs. P-H and P). The total amount owed the private school for the 2021-22 school year is significant. The Parent’s testimony that they lack the financial resources to ‘front’ the costs of private school tuition is uncontroverted and the Parents, therefore, have a right to retroactive direct tuition payment relief. Based upon the undisputed evidence presented, the Parents do not have the financial resources to fully fund the tuition or the cost of transporting the Student.

ORDER

Based upon the above Findings of Fact and Conclusions of Law, it is hereby:

• • ORDERED that the District shall reimburse the Parents for tuition paid to the private school for the 2021-22 school year within thirty (30) days in the amount of two thousand five hundred dollars ($2,500); and it is further
• • ORDERED that the District shall directly pay to the private school within thirty (30) days of the date of this decision the balance of the tuition owed for the 2021-22 school year.
• • IT IS FURTHER ORDERED that the District shall directly pay to the private school the actual costs of transporting the Student to and from the private school for the 2021-22 school year within thirty (30) days of the date of the decision.

SO ORDERED.

DATED: November 11, 2022

Lisa S. Rusk

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public-School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

Letter

Date

Name of Document

# of Pages

A

3/9/22

DPC

2

B 6/18/21 Parent letter 2

C 21-22 Contract 6

D 8/18/22 Payment affidavit* corrected for sy typo in 1

E 6/1/21 Proof of payment 1

F 21-22 Schedule 1

G N/A Program description 4

H 2020 Federal 1040 form 2

I 10/9/22 Parent testimony affidavit 2

J 10/3/22 School testimony affidavit 8

K 6/1/22 School progress report 3

L 6/14/22 Occupational progress report 5

M 6/7/22 Physical therapy progress report 3

O 6/7/22 Speech therapy progress repot 5

P

2020

Schedule 1 1040 Form

1

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. No Exhibit “N” was identified or introduced into the record.

[4] The contract provided that it could be rescinded if the Parents accepted a District placement by July 5, 2022 (Ex. P-C-1).

[5] Responsibility for such deficiency lies with the District (see Application of a Student with a Disability, Appeal No. 21-194 at pg. 17).