New York City Department of Education, Impartial Hearing Decision

Case Number: 571093 – NYC: 225215

FINDINGS OF FACT AND DECISION

Student’s Name: [REDACTED]

Date of Birth: [REDACTED]

District: [REDACTED]

Region: [REDACTED]

Hearing Requested By: Parents

Dates of Hearing: May 3, 2022

June 13, 2022

July 28, 2022

August 3, 2022

September 1, 2022

October 3, 2022

October 27, 2022

November 29, 2022

January 5, 2023

February 1, 2023

February 22, 2023

March 23, 2023

April 24, 2023

May 10, 2023

Actual Record Close Date: June 30, 2023

Hearing Officer: Maria R. Dispenza, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

MAY 3, 2022

For the Student:

[REDACTED] Parent Advocate

For the Department of Education:

[REDACTED] DOE District Representative, [REDACTED]

NAMES AND TITLES OF PERSONS WHO APPEARED

JUNE 13, 2022

For the Student:

[REDACTED] Parent Attorney

For the Department of Education:

[REDACTED] DOE District Representative, [REDACTED]

NAMES AND TITLES OF PERSONS WHO APPEARED

JULY 28, 2022

For the Student:

[REDACTED] Parent Attorney

For the Department of Education:

[REDACTED] DOE District Representative, [REDACTED]

NAMES AND TITLES OF PERSONS WHO APPEARED

AUGUST 3, 2022

[REDACTED] Parent Attorney

For the Department of Education:

[REDACTED] DOE District Representative, [REDACTED]

NAMES AND TITLES OF PERSONS WHO APPEARED

SEPTEMBER 1, 2022

For the Student:

[REDACTED] Parent Attorney

For the Department of Education:

[REDACTED] DOE District Representative, [REDACTED]

NAMES AND TITLES OF PERSONS WHO APPEARED

OCTOBER 3, 2022

For the Student:

[REDACTED] Parent Attorney

For the Department of Education:

[REDACTED] DOE District Representative, [REDACTED]

NAMES AND TITLES OF PERSONS WHO APPEARED

OCTOBER 27, 2022

For the Student:

[REDACTED] Parent Attorney

For the Department of Education:

[REDACTED] DOE Consultant Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

NOVEMBER 29, 2022

For the Student:

[REDACTED] Parent Attorney

For the Department of Education:

[REDACTED] DOE Consultant Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

JANUARY 5, 2023

For the Student:

[REDACTED] Parent Attorney

For the Department of Education:

[REDACTED] DOE Consultant Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

FEBRUARY 1, 2023

For the Student:

[REDACTED] Parent Attorney

For the Department of Education:

[REDACTED] DOE Consultant Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

FEBRUARY 22, 2023

For the Student:

[REDACTED] Parent Attorney

For the Department of Education:

[REDACTED] DOE Consultant Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

MARCH 23, 2023

For the Student:

[REDACTED] Parent Attorney

For the Department of Education:

[REDACTED] DOE Consultant Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

APRIL 24, 2023

For the Student:

[REDACTED] Parent Attorney

For the Department of Education:

[REDACTED] DOE Consultant Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

MAY 10, 2023

[REDACTED] Parent Attorney

[REDACTED] Parent/Mother

For the Department of Education:

[REDACTED] DOE Consultant Representative

INTRODUCTION

On March 21, 2022, New York City Department of Education (DOE) appointed me to act as the impartial hearing officer (IHO) in a case brought under the Federal Individuals with Disabilities Education Act (IDEA) [20 USC §1415(f)(3)] (“IDEA”) by the parent (Parent) of [REDACTED] ([REDACTED]) for the school year 2021/22. The Parent requested the hearing by filing an impartial hearing request with the NYC Department of Education (DOE) on or about March 16, 2022. The DPC is carried under New York City (“NYC”) Case No: 225215. The impartial hearing was held over a series of dates, to complete the record on May 10, 2023. The timelines have also been extended to allow the parties opportunity to fully prepare, secure witnesses and obtain transcripts. The record officially closed on June 30, 2023. A list of persons who appeared at the hearing and the documents entered into evidence is annexed hereto.

BACKGROUND AND POSITIONS OF THE PARTIES

[REDACTED] is a student classified by the DOE as a student with “Autism” (Exhibit A). At an IEP meeting held on April 19, 2021 for the 2021/22 school year, the team recommended a placement of a special class 6:1:1 with related services of occupational therapy, speech therapy, counseling and parent training in a District 75 school and recommended a 1:1 paraprofessional for behavior support (Exhibit M). Parent alleges that [REDACTED] presents with various developmental delays and significant behavioral difficulties, speaks in very short sentences, does not follow instructions unless physically prompted and has a very short attention span (Exhibit M). The Parent alleged numerous procedural violations and substantive inadequacy and claimed the recommended program amounted to a deprivation of FAPE for the 2021/22 school year. The Parent alleges giving notice to the DOE of its failure to provide [REDACTED] with an appropriate program and placement and of her intent to unilaterally place [REDACTED] at [REDACTED] ([REDACTED]) and seek funding (Exhibit M). Subsequently, as a remedy for the DOE’s failure to provide [REDACTED] a FAPE, the Parent filed a DPC and now seeks reimbursement for [REDACTED]’s unilateral placement at [REDACTED] for the 2021/22 school year (Exhibits A and M, T @ 92).

In an effort to support their position, the parent submitted a documentary exhibit package consisting of thirteen pieces of evidence (Exhibits A-M), which included the affidavit testimony of [REDACTED], Executive Director and the School Principal at the [REDACTED] (Exhibit K) and [REDACTED], [REDACTED]’s mother (Exhibit M).

At hearing, the DOE representative advised that the DOE would not be seeking to call any witnesses or enter evidence into the record and conceded Prong I, representing the matter had been approved for settlement purposes but had not since said approval made progress (T @ 86-88). The DOE opted to raise a sole issue and that was with regard to [REDACTED]’s absences for the 2021/22 school year and briefly cross-examined Parent witnesses on said issue. Ultimately, the DOE did not contest Parent requested relief but raised an objection to the full cost of tuition and requesting that a reasonable rate be deducted to consider the 41 days [REDACTED] was absent for the 2021/22 school year (T @ 93-100).

FINDINGS OF FACT AND DECISION

The Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) was enacted with the primary purpose to ensure that students with disabilities have available to them a free and appropriate public education (FAPE) (20 U.S.C. § 1400[d][1][A]; see Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]; Bd. of Educ. v. Rowley, 458 S. Ct. 176, 179-81, 200-01 [1982]; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [2d Cir. 2006]). It is clear that the legislative intent of 20 US Code Section 1412 of the IDEA is to provide a FAPE to all children with disabilities so that these individuals may ultimately lead productive independent lives as adults, to the maximum extent possible (20 U.S.C. Sx 1400[d][1][A]; see Mrs. W v. Tirozzi, 832 F.2d 748 [2nd Cir. 1987]. A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.17; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.22). An IEP is designed as a "written statement" that addresses the educational needs of a child with a disability (20 U.S.C. § 1401[14]; 34 C.F.R. § 300.22; 8 NYCRR 200.1[y]). At the beginning of each school year, a school district is required to have an IEP in effect "for each child with a disability in its jurisdiction" (20 U.S.C. § 1414[d][2]; 34 C.F.R. § 300.323[a]; see also Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 194 [2d Cir. 2005] (finding the district fulfilled its legal obligations by providing the IEP before the first day of school). The student's recommended program must also be provided in the least restrictive environment (LRE) (34 C.F.R. § 300.114[a]; 8 NYCRR 200.6[A][1]). A FAPE is offered to a student when the board of education (a) complied with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. at 176, 206, 207 [1982]). The IDEA directs that, in general, a decision by an impartial hearing officer or state review officer must be made on substantive grounds based on a determination of whether or not the child received a FAPE (20 U.S.C. § 1415[f][3][E][i]). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child'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 child, or (c) caused a deprivation of educational benefits to the child (20 U.S.C. § 1415[f][3][E][ii]; see 8 NYCRR 2005[j][4][ii]). The IDEA mandates that a student with a disability be provided with a FAPE tailored to meet his unique needs and one that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas Cty. Sch. Dist., 580 U.S. ___, 137 S.Ct.988, 999 (2017). A focus on the particular child is at the core of the IDEA. Endrew F., 137 S.Ct. at 999. Under 20 U.S.C. Section 1414(d)(3)(A), the IDEA mandates an IEP team to consider a child’s strengths, weaknesses and deficiencies, as well as the results of the most recent evaluations of the child together with developmental and functional needs of the child. In order to determine the student’s requirements and needs, the team must review and consider evaluations, assessment and information provided by the child’s parents, teachers and service providers and thereon determine the type of program required for the child. A board of education may be required to pay for educational services obtained for a child by the child's parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim. (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 R. and Dianne R. v. Bd. of Educ. of Hyde Park,459 F.3d 356 [2d Cir. 2006], cert denied, Board of Educ. of Hyde Park Cent. School Dist. v. Frank R., 2007 WL 2982269 [Oct. 15, 2007].

The case at hand is a tuition reimbursement case and is therefore governed by the holding of the U.S. Supreme Court in Burlington School Comm. v. Dept of Education (471 U.S. 359 [1985]). That case set forth a three-prong test for determining if tuition reimbursement is warranted: (1) were the services offered by the school district inadequate or inappropriate; (2) where the services selected by the parents appropriate; and (3) do equitable considerations support the parents’ claim. Recently enacted state legislation puts the burden of proof for the first prong on the school district and for the second prong on the parent (Chap. 583 of Laws of 2007).

Prong I:

In the instant matter, the DOE bears the burden of presentation and persuasion in all allegations raised in the DPC. Herein, the DOE conceded a FAPE denial and failed to present any witnesses or evidence. An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the child’s needs, establishes annual goals and short-term instructional objectives which are related to the child’s educational deficits, and provides for the use of appropriate special education services to address the child’s special education needs. Application of a Child with a Disability, Appeal No 93-12; Application of a Child with a Disability, Appeal No 93-9; Application of a Child with a Handicapping Condition, Appeal No 92-7; Matter of Handicapped Child, 22 Ed Dept Rep 487, March 11, 1983. The SRO has found that allegations that are left unchallenged are deemed as true “unless found to be inconsistent with the evidence in the record.” Application of a Student with a Disability, 01-044 (SRO March 27, 2002). The DOE’s silence at hearing has the effect of conceding every point alleged by the parent against the DOE unless it is inconsistent with the hearing record. Id. Herein, the DOE conceded Prong I and therefore no further analysis is required. Prong II:

Having determined that the DOE did not offer the student a FAPE for the 2021/22 school year, I now proceed to evaluating the appropriateness of the parents’ unilateral placement of the student at [REDACTED]. The parent’s failure to select a program approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Florence County Sch Dist Four v. Carter 510 U.S. 7 [1993]). The private placement need not employ certified special education teachers, Carter, supra. The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of the unilateral placement: “No one factor is necessarily dispositive in determining whether parents’ unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction”. (Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).

Herein, I credit the evidence and testimony (Exhibits H, K, and M) submitted by Parent and find it establishes that the placement at [REDACTED] was appropriate as it provided a program and services that were directly related to [REDACTED]’s needs and one in which he was able to make meaningful progress. I find the evidence to substantiate the program at [REDACTED] to offer a small supportive environment with intensive 1:1 and small group instruction, multi-sensory instruction, modifications and supports required by [REDACTED] to make progress. Related services are provided and incorporated into the academic program (Exhibits E and K).

Based upon the foregoing, I therefore find that [REDACTED] was an appropriate placement for [REDACTED] for the 2021/22 school year. The record reflects [REDACTED] provided a rich supportive environment that correlated well with [REDACTED], that the curriculum was specifically tailored to meet [REDACTED]’s needs and that he received a highly individualized instruction that enabled him to make appropriate progress. Based upon the foregoing, I find that the student made meaningful progress at [REDACTED] for the 2021/22 school year across the board: academically, socially and emotionally. The record reflects that [REDACTED] was a placement that was “specifically designed to meet the unique needs” of the student Frank G, supra and that [REDACTED] has made progress therein (Exhibits I-J).

While the DOE raised an issue with regard to the absence days it deemed excessive for the 2021/22 school year and requested that any award be reduced accordingly, testimony established that [REDACTED] did not receive any type of after school ABA services at home (T @ 94-95) to assist in coping with [REDACTED]’s behavior. [REDACTED]’s mother testified:

“It was so hard to work with him. It's really so hard to work with him. He scratches a lot, he pull hair. He hit my other kids. Every morning, you don't know what you have to go through” (T @ 94).

Based upon the foregoing, I do not deem any reduction warranted.

Prong III:

Having found [REDACTED] an appropriate placement, I now consider equitable considerations, the final criterion for a reimbursement award. In weighing the equities, “the critical consideration, as the Court sees it, is whether they have cooperated in good faith to attempt to develop an IEP to the maximum extent possible, Schaffer, supra. There is nothing in the record to show that the parents were anything other than cooperative. The DOE did not present any evidence or testimony regarding the equity considerations for the 2021/22 school year. All indications are that the Parent cooperated with the DOE and did not interfere in any way with the DOE’s obligation to provide a FAPE for the Student for the 2021/22 school year. [REDACTED]’s Parents timely put the DOE on notice of [REDACTED]’s unilateral placement and their intent to seek reimbursement (Exhibit M).

This case involves a situation where the Parent’s financial circumstances limit their ability to make payment to [REDACTED] (Exhibits G, L and M). Established case law warrants a finding that under such circumstances a school district must pay the monies owed, assuming parent’s claim is meritorious with regard to the three Burlington factors. In Conners v. Mills, 34 F. Supp. 2d 795 (N.D.N.Y.) at 805, the court reasoned: “By prohibiting prospective placement, Defendants would deny assistance to families that are not able to front the cost of a private, non-approved school, without exception…Given the fragile state of many disabled children, and their dire need for constant and consistent care, even brief periods of inappropriate schooling could lead to tremendous educational, social, emotional and psychological deterioration. Families of greater economic means would not be faced with such a grim prospect. It simply cannot be the case that an act designed to grant “all” disabled children access to needed services could undermine that very goal by making such access dependent upon a family’s financial situation.”

I find (1). that the DOE failed to offer the student a FAPE for the 2021/22 school year, (2). that the unilateral placement of the student at [REDACTED] was appropriate (3). that the program at [REDACTED] was “reasonably calculated” to provide [REDACTED] with meaningful educational benefits and (4). that equitable considerations weighed in favor of the parents’ request for reimbursement for all costs associated with the placement of the student at [REDACTED] for the 2021/22 school year.

Based upon the foregoing,

ORDER

It is hereby ordered that within thirty (30) days of receipt of this Order, the Department of Education shall directly fund/reimburse the cost of the student's tuition at [REDACTED] for the 2021/22 school year in the amount of $129,000.00. All payments shall be supported by the presentation of appropriate documentation.

This Order shall exclude any payment that may have been previously paid by the DOE pursuant to the Pendency Agreement.

Dated: July 10, 2023

Maria R. Dispenza

MARIA R. DISPENZA, ESQ.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

PLEASE TAKE NOTICE

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

DOCUMENTATION ENTERED INTO THE RECORD ON MAY 10, 2023

A. Parent: Due Process Complaint, 3/16/22 -5pp B. FOFD (Case No: 194459), 07/03/22 -20pp

C. [REDACTED] Program Description, Undated -9pp

D. Enrollment Contract, 06/10/21 -2pp

E. [REDACTED] Class Schedule, 2021/22 -1pp

F. [REDACTED] Attendance Report, 06/16/22 School Year -1pp

G. [REDACTED] Tuition Affidavit, 09/28/22 -1pp

H. [REDACTED] Progress Report, 06/28/22 -11pp

I. [REDACTED] Psycho-Social Report, 03/09/22 – 2pp

J. [REDACTED] Psychological Evaluation, 06/13/22 -10pp

K. Affidavit of [REDACTED], M.S., CCC-SLP, M.A. Ed, 09/29/22 – 19pp L. Parent’s Income Tax Return, 2021, 05/01/22 -3pp

M. Affidavit of [REDACTED], 05/10/23 – 5pp

Footnotes

[279] and model forms are available at http://www.sro.nysed.gov.