New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Student's Name ^[1]: [REDACTED] ("Student")

Date of Birth: [REDACTED]

School District: [REDACTED]

Hearing Requested by: [REDACTED] ("Parents")

Request Date/Date Complaint Filed: April 11, 2022

Dates of Hearing: April 20, 2023, May 16, 2023

Actual Record Closed Date: May 22, 2023

Date of Decision: June 5, 2023

Date of Distribution if Different than Decision Date:

Hearing Officer: Lisa S. Rusk, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

APRIL 20, 2023

For the Student:

[REDACTED], Attorney

For the Department of Education:

No one

NAMES AND TITLES OF PERSONS WHO APPEARED

MAY 16, 2023

For the Student:

[REDACTED], Attorney

[REDACTED], Parent Student

[REDACTED], Director of Education

For the Department of Education:

[REDACTED], Attorney

INTRODUCTION AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer ("IHO") on Parents' Due Process Complaint ("DPC"), dated April 7, 2022 and filed on April 11, 2022. (Ex. P-A) ^[2]. The record does not contain evidence of a substantive response to the DPC by the [REDACTED] (hereinafter referred to as "the District"). This IHO was appointed on June 16, 2022.

A pre-hearing conference was held on June 23, 2022. [REDACTED] appeared on behalf of the Parents at the conference and at all future appearances. No one appeared on behalf of the District. At the request of the Parents, a status conference was held on July 1, 2022. [REDACTED] appeared on behalf of the District and advised that the case was under investigation (T:11-12). At the request of the parties, a status conference was held on August 9, 2022. [REDACTED] filled in on behalf of the District, and hearing dates were scheduled. At the request of the parties, the hearing date on September 30, 2022 was converted to a status conference as they were proceeding toward settlement. [REDACTED] appeared on behalf of the District and advised that the case had been referred for settlement (T:27-28). At the request of the parties, a status conference was held on October 25, 2022. [REDACTED] advised that her referral for settlement was still under review, but that the case would likely settle (T:33). At the request of the parties, status conferences were held on November 21, 2022, December 15, 2022 and January 11, 2023, where [REDACTED] advised that the parties were still awaiting final settlement approval (T:39-40, 47, 52). At the request of the parties, a hearing scheduled for January 20, 2023 was converted to a status conference. [REDACTED] appeared on behalf of the District. [REDACTED] advised that the case had been finally approved for settlement, and the District was awaiting documentation from the private school (T:60-61). At the request of the parties, a status conference was held on February 10, 2023. [REDACTED] appeared on behalf of the District. [REDACTED] indicated that she needed to submit final numbers from the private school (T:66-67). At the request of the parties, a status conference was held on March 13, 2023, [REDACTED] advised that she was waiting for the draft stipulation of settlement from the District (T:73-74). At the request of the parties, a status conference was held on April 7, 2023, no one appeared on behalf of the District, and [REDACTED] advised that [REDACTED] was no longer employed by the District. A hearing date was scheduled for April 20, 2023 (T:80-83). No one appeared on behalf of the District to present its case. The IHO entered Exhibit IHO I into the record documenting the scheduling of the hearing.

The parties met on May 16, 2023 for the Parents to present their case. [REDACTED] appeared on behalf of the District and made a motion to dismiss the DPC (T:104). The motion was denied, and the District entered one exhibit into evidence as District Exhibit 1 (T:110-11). The Parents presented two witnesses, the Student's mother and the Director of Education from the private school. The Parents also entered Exhibits A-I 3 into evidence. Twelve extensions of the compliance date were granted at the request of the parties while they worked toward resolving the case, which by all accounts should have been settled. The record was closed on May 22, 2023.

JURISDICTION

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

BACKGROUND

The Student was [REDACTED] years old at the time of the filing of the DPC. The Student was prepared to attend the District's [REDACTED] for the 2021-22 school year. Due to a constellation of social-emotional issues, the Student was unilaterally placed by the Parents at [REDACTED] in August of 2021, and in October of 2021 the Parents requested that the CSE reconvene. (Ex. P-G-1). On October 25, 2021, the Parents unilaterally placed the Student at [REDACTED] (hereinafter referred to as "the private school"). The District's Committee on Special Education ("CSE") met on November ^[3], 2021 to review the Individualized Education Program ("IEP") for the Student for the 2021-22 school year. The District recommended a deferral to the CBST for a residential placement. Only two State-approved residential placements reached out to the Parents. One quickly rejected her, and the second could not meet her level of therapeutic need. The Student remained at the private school for the 2021-22 school year.

ISSUES

Despite making a recommendation for a residential placement and deferral to the CBST in November of 2021, the District's CSE never secured a residential placement for the Student. The Parents allege in the DPC that on or about December of 2021, they were advised that the residential costs of the private school placement had been approved by New York State, but quizzically the District had not received State approval for payment of the academic portion of the private school program. The DPC requests that the full tuition and room and board for the private school placement for the 2021-22 school year be reimbursed (Ex. P-A). By the time the hearing commenced, all payments had been made by the District to the private school for the 2021-22 school year, but the Parents continued to seek an acknowledgment by the District that the payments made were authorized and that the District would not seek to recoup the payments from the private school or the Parents (T:100). The District would not make such acknowledgment (T:102-03).

FINDINGS OF FACT

The Parent testified via affidavit that the Student attended District public schools through the seventh grade (2019-22). In eighth grade she attended a therapeutic day school from January 2021-June 2021. The Student was prepared to attend the District's [REDACTED] for the 2021-22 school year. Due to a constellation of social-emotional issues, the Student was unilaterally placed at [REDACTED] in August of 2021, and it became clear to the Parents that the Student would require a residential placement for the 2021-22 school year (Ex. P-G-1).

On October 7, 2021, the Parents requested that the CSE reconvene (Ex. P-G-2). On October 25, 2021, the Parents unilaterally placed the Student at the private school in its [REDACTED] academic school component, both are licensed by the State of [REDACTED] (Ex. P-H-2). The District's Committee on Special Education ("CSE") met on November 3, 2021 to review the Individualized Education Program ("IEP") for the Student for the 2021-22 school year. The District recommended a deferral to the CBST for a residential placement. Only two State-approved residential placements reached out to the Parents. One quickly rejected her, and the second could not meet her level of therapeutic need. The Parents advised the Student's District case manager of the status, and the case manager worked toward securing New York State funding for the Student's attendance at the private school (Ex. P-G-2). Shortly thereafter the Parents were advised that New York State approved funding for the residential portion of the program but did not approve the academic portion of the program. The case manager advised the Parents that they were trying to resolve the funding issue but were having difficulty doing it. The Parents heard nothing further from the District, but the private school began receiving payment directly from the District. The private school did not receive any response from the District regarding their inquiries into funding approval; neither did the Parents, despite writing a letter to the District in March of 2022 (Ex. P-G-3). The Parents initiated this hearing in April of 2022.

The Student remained at the private school for the 2021-22 school year. She made tremendous academic and social progress resulting in significant therapeutic breakthroughs. She stopped self-harming and learned to manage her anxiety and OCD more effectively. With the emotional support provided, she was able to attend to her academics and obtained solid grades (Ex. P-G-3). By the end of the Summer of 2022, she had progressed enough to leave the private school and transition to a step-down residential school with less therapeutic support (Ex. P-G-3-4).

The Parents offered the testimony of the Director of Education of the private school. Her testimony that the private school's program was appropriate for the Student and that the Student made considerable social-emotional, therapeutic and academic progress in the program is undisputed (Ex. P-H). Her grades at the end of the fourth quarter in June of 2022 ranged from 93 to 100. The teachers' comments on her report card were universally positive (Ex. P-D). The record also contains the private school's comprehensive treatment plan that outlines the social emotional problems addressed by the private school, the interventions utilized and updates on her progress, ultimately leading to her discharge from the program (Ex. P-E).

The Parent testified that they signed a contract with the private school obligating themselves for the cost of tuition and room and board at the private school (Ex. P-C). They started making direct payments to the private school. Once the private school began receiving direct payments from the District, the private school reimbursed the Parents for payments made from October 25, 2021 through June 30, 2022. Despite the District's actions, the Parents have never received any written confirmation from the District regarding their financial responsibility or obligation for the costs of the private school. The Parents have sought through this hearing process an order finding that the District failed to offer an appropriate program for the 2021-22 school year and that the District is financially responsible for payments made to the private school for the 2021-22 school year (Ex. P-G-4).

The Parent testified at the hearing that she has never received in writing an approved placement for the Student for the 2021-22 school year. She confirmed that she was advised by a contact at the District that the residential portion of the program had been approved, but the tuition had not been approved by the District (T:127-28). Despite no approval ever being secured, the District began making payments to the private school for both tuition and maintenance. An affidavit from an accounts receivable specialist from the private school states that the District has paid $147,600.38 ^[4] for tuition and the residential portion for the student for the 2021-22 school year (Ex. P-F). The District entered into evidence a vendor screenshot which indicates that tuition in the amount of $57,361.00 has been paid by the District between 2/2/22 and 7/12/22 for the 2021-22 school year. However, also in evidence is a New York State STAC-1 form for the Student, dated January 27, 2022 which states under comments "initial denial". The form states that maintenance has been approved but that tuition has been disapproved for the private school (Ex. P-I).

CONCLUSIONS OF LAW

The IDEA provides that children with disabilities are entitled to a Free Appropriate Public Education ("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). School districts are obligated to provide the services listed in a Student's IEP. 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. (NYS Educ. Law § 4404[1][c]).

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)). It is well settled that 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]), 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]).(Application of a Child with a Disability, SRO Appeal No. 22-154).

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 (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]). If the District is unable to prove that it met its burden under Prong I of the three prong Burlington/Carter test, the parent in order to meet his or her burden 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, under the third prong of the Burlington/Carter test, equitable factors must weigh in the favor of the parents in order to qualify for an award of tuition reimbursement.

ANALYSIS

This case has a very unusual fact pattern. There is no IEP in evidence for the Student for the 2021-22 school year. Despite the parties' recognition that the Student was recommended for a residential placement by the District in November of 2021, there is no evidence that a residential placement was ever secured by the District for the Student. Instead, beginning in February of 2022, the District began making direct payments to the out-of-State private school selected by the Parents. The Parents have received reimbursement from the private school for whatever payments they have made. To date, the tuition and maintenance for the 2021-22 school year has been paid in full by the District. There is no evidence in the record an no arguments raised by the District that the Parents thwarted the process or were uncooperative.

The District argues that there is no controversy and that the case should be dismissed. However, the legitimate concern of the Parents is that the record contains no evidence that the payments made to the private school were authorized by the District or the State Education Department. There is no IEP, no approved STAC-1 form and no written correspondence to the Parent or private school authorizing the placement or the District's financial obligation to pay. There appears to be, however, an acknowledgement by the District regarding the suitability of the placement, as demonstrated through their independent funding. This case should have been resolved by the parties through a settlement agreement and release, and the IHO gave the parties more than ample time to come to an agreement.

I find based upon the evidence and testimony presented that the District failed to meet its burden to prove that it provided the Student a FAPE for the 2021-22 by complying with the procedural requirements set forth in the IDEA and developing an IEP that is reasonably calculated to enable the student to receive educational benefits. It is uncontroverted that the Student required a residential placement during the 2021-22 school year and that the private school provided instruction and therapy to meet her unique special education needs.

The equities weigh in favor of the Parents. I find based upon the facts and circumstances that the District was financially responsible for the Student's placement at the private school for the 2021-22 school year.

ORDER

Based upon the above Findings of Fact and Conclusions of Law, it is hereby: ORDERED that the District is responsible for all tuition and room and board costs attributed to the Student's placement at [REDACTED] during the 2021-22 school year.

SO ORDERED.

DATED: June 5, 2023

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.

PARENT EXHIBITS

A. Letter Date Name of Document # of Pages DPC 4/7/22 4 pages

B. Parent letter 3/15/22 3 pages

C. Contract 21-22 6 pages

D. Final report card 6/21/22 2 pages

E. Comprehensive treatment plan 4/23/22 7 pages

F. Payment affidavit 9/12/22 4 pages

G. Parent testimony affidavit 5/8/23 4 pages

H. School testimony affidavit 5/9/23 6 pages

I. NY payment agreement for [REDACTED] 1/27/22 3 pages

DISTRICT EXHIBITS

1. Number Document Date Number of Pages Vendor Portal screenshot undated 1 page DOE

IHO EXHIBITS

I. Number Document Date Number of Pages Email from IHO to parties 4/7/23 1 page

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.

[4] According to the private school's records, the District is owed a credit of $1,770.73.