New York City Department of Education, Impartial Hearing Decision

Case Number: 572288 – NYC: 225932

Student's Name: [REDACTED] ("STUDENT")

Date of Birth: [REDACTED]

Home District: [REDACTED]

Hearing Requested By: Parent

Date of Hearing(s): [REDACTED]

Hearing Officer: Ellen Cutler-Igoe, Esq.

Hearing Close Date: June 6, 2023

FINDINGS OF FACT AND DECISION

NAMES OF PERSONS WHO APPEARED ON [REDACTED]

Parent's Attorney

[REDACTED] [REDACTED]

[REDACTED], Parent

For the Department of Education:

[REDACTED]

On April 26, 2022, I was appointed the Impartial Hearing Officer, pursuant to the Individuals with Disabilities Education Act, ("IDEA") 20 U.S.C. 1415(f)(1) in the matter of STUDENT. The parties moved to extend the compliance date during the course of the proceeding. In considering the requests, I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of the matter. Accordingly, the request for extensions of the compliance dates were granted. Appended to the record is a list of documents submitted into the evidence.

STUDENT is a [REDACTED] child who has been classified by the CSE as a student with an Intellectual Disability. STUDENT presents with notable delays in many areas of development, including receptive, expressive, pragmatic, and oral motor weakness. In addition, STUDENT has physical difficulties including upper extremity weakness and coordination issues. STUDENT needs a structured classroom with a lot of teacher support in addition to [REDACTED] support in order to make progress. (Ex. A, K)

The CSE held a meeting on [REDACTED] in order to review Student's educational program for the 2021-2022 school year. On that day, the CSE created an IEP for STUDENT and recommended that [REDACTED] attend a [REDACTED] in a NYC DOE Specialized school for [REDACTED] and related services.

On [REDACTED], the District issued a School Location Letter, indicating that Student's IEP was recommended to be implemented at [REDACTED] for the 2021-2022 school year. (Ex.C) On the same day that that Student parent received the placement letter, she contacted the proposed school to inquire whether it was an appropriate school to meet her daughter's needs and learned that [REDACTED] was unable to implement STUDENT's IEP as written. [REDACTED] at [REDACTED] informed Student's [REDACTED] that all the [REDACTED] classes for Student's grade were fully enrolled and the program cannot take any more students. Student's [REDACTED], through counsel, wrote to the CSE twice in August 2021, to express concerns regarding the IEP and proposed public school placement for STUDENT. To date, the CSE has failed to substantively respond to her concerns. (Ex. L2-3)

Analysis

The purpose of the IDEA is to ensure that students with disabilities have available to them a free, appropriate, public education ("FAPE") that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living, and to ensure that the rights of students with disabilities and parents of such students are protected. 20 U.S.C. § 1400(d)(1)(A)-(B); see also Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982); Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 (2009); M.H. v. N.Y.C. Dep't of Educ., 685 F.3d 217, 223 (2d. Cir. 2012). The United States Supreme Court clarified the standard to which educational programs developed pursuant to the IDEA's requirements are held. "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." Endrew F. v. Douglas Cty. Sch. Dist. RE-1, _U.S._, 137 S. Ct. 988, 999 (2017). The determination of whether an IEP is sufficient to meet this standard therefore differs according to the individual circumstances of each student. See id. at1000. A child's educational program must be appropriately ambitious in light of his circumstances. Id. at 992.

Where deprivation of FAPE is found, or conceded as it has been in this case, the IDEA allows a hearing officer to fashion a remedy that he or she finds appropriate under the circumstances, including but not limited to "ordering a local educational agency to comply with procedural requirements under this section," 20 U.S.C. § 1415(f)(3)(E)(iii), and awarding compensatory education and additional services tailored to meet the unique circumstances of the case. 20 U.S.C. §§ 1401(3), 1412(a)(1)(B); N.Y. Educ. Law §§ 3202(1), 4401(1), 4402(5); see also P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008); Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997). The IDEA further contemplates the equitable award of private tuition payment where, as here, parents of students covered under the IDEA have unilaterally placed the student privately in response to the DOE's failures to provide the student with a FAPE. Sch. Comm. of Town of Burlington, Mass. v. Dep't of Educ., 471 U.S. 359, 373-74 (1985); Florence Cnty. Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); A.D. v. Bd. of Educ. of City Sch. Dist. of N.Y., 690 F. Supp. 2d 193, 198 (S.D.N.Y. 2010); 20 U.S.C. § 1412 (a)(10)(C). "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 . . .. '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." SRO No. 12-135, p. 9 (quoting Burlington, 471 U.S. at 370-71, and citing 20 U.S.C. § 1412 (a)(10)(C)(ii) and 34 CFR 300.148). The broad spectrum of equitable relief contemplated under the IDEA encompasses all forms of private tuition payment remedies, whether that be reimbursement, prospective payment, retrospective payment, or any direct payment scheme under which the DOE would make the student's tuition payments in the place of the parent. E.M. v. N.Y.C. Dep't of Educ., 758 F.3d 442, 453 (2d Cir. 2014). Under the Burlington-Carter three-part assessment, parents are entitled to payment of a private placement if: (1) the DOE failed to offer the student a FAPE; (2) the private placement secured by the parents is appropriate to the child's needs; and (3) equitable considerations support the plaintiffs' claim. Forest Grove, 557 U.S. 230; Carter, 510 U.S. 7; Burlington, 471 U.S. 359; Frank G. v. Bd. of Educ., 459 F.3d 356 (2d Cir. 2006); 20 U.S.C. § 1412(a)(10)(C).

The burdens of production and persuasion fall upon the DOE for all matters at issue other than the appropriateness of the parental placement, for which the burden of proof lies with the parents. N.Y. Educ. Law § 4404(1)(c); see also M.P.G. v. N.Y.C. Dep't of Educ., 2010 WL 3398256 at *7 (S.D.N.Y. Aug. 27, 2010).

The DOE did not present any witnesses or evidentiary material in support of a FAPE defense or placement position.

Parent presented two witnesses, [REDACTED] in the form of affidavit testimony, and [REDACTED], Parent of STUDENT. [REDACTED] testified in affidavit form that STUDENT had been diagnosed with [REDACTED], needed to be on a toileting schedule and academically on a kindergarten level. [REDACTED]'s educational needs according to [REDACTED] required one on one support, small class size and monitoring during the day for distractibility. Moreover, [REDACTED] opined that the IEP goals prepared by the NYC DOE were overly broad and not appropriate for STUDENT. (Ex. K2-3)

Under the "Burlington/Carter" analysis, it is the parent's burden to prove that the unilateral placement chosen by the parent is appropriate. To demonstrate that a student's private school placement is appropriate, his or her parents must demonstrate that the private placement is "reasonably calculated to enable their child to receive an educational benefit." Frank G. v. Bd. of Educ. Of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006) The evidence amply demonstrates that Student placement at [REDACTED] was appropriate; the school had an acute awareness of Student needs, and designed an individualized, [REDACTED] program specifically to address said needs, in order to provide [REDACTED] with educational benefits. (Ex. C, D, G, K).

As to the third prong of the Burlington-Carter analysis, "[e]quitable considerations [relating to the reasonableness of the action taken by the parents]" are relevant in determining whether, and to what extent, parents should be reimbursed. Frank G. v. Bd. of Educ., 459 F.3d 356, 363 (2d Cir. 2006). If a student is not provided with a FAPE and the placement obtained by the student's parent is appropriate, then a hearing officer may engage in a "balancing of the equities" to determine appropriate relief. Burlington, 471 U.S. at 367, 374.

In the absence of evidence demonstrating that the parent failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, there is no equitable bar to a recovery of tuition. Mr. and Mrs. A. v. N.Y.C. Dep't of Educ., 769 F. Supp. 2d 403, 419 (S.D.N.Y. 2011) (citing Forest Grove, 557 U.S. at 259). Notwithstanding, I find a review of the record amply demonstrates Parent's cooperation with the CSE. Additionally, the uncontested testimony and evidence clearly establish that Parent is not in a financial position to disburse payment for [REDACTED]'s tuition. (Ex. L-2, J) However, by signing the tuition contract, Parent assumed financial and legal responsibility whether or not they prevail at this impartial hearing. A.R. v. N.Y.C. Dep't of Educ., No. 12 Civ 4493(PAC), 2013 WL 5312537, at *7-8 (S.D.N.Y. Sept. 23, 2013). (Ex. H) The Second Circuit has held that, in IDEA matters, absent evidence of a written agreement to the contrary, the contract must be taken on its face. E.M v. N.Y. City Dep't of Educ., 758 F.3d 442, 459-60 (2d Cir. 2014). As such, retroactive direct funding is an appropriate remedy, as an impartial hearing officer's "'broad discretion' to 'grant such relief as . . . is appropriate' . . . includes the power, in a proper case, to award retroactive direct payment of private school tuition." Id. at 453 (quoting Mr. and Mrs. A., 769 F. Supp.2d at 427).

Accordingly, I find: (1) the District failed to demonstrate that it offered [REDACTED] a FAPE for the 2021-2022 school year; (2) [REDACTED] was an appropriate placement for STUDENT for the 2021-2022 school year; and (3) there is no equitable bar to recovery.

The DOE is hereby ORDERED to directly fund [REDACTED]'s program at [REDACTED] for the 2021-2022 school year, totaling [REDACTED]. (Ex. I)

Dated: June 8, 2023

Ellen Cutler-Igoe

Ellen Cutler-Igoe, Esq.

Impartial Hearing Officer

EXHIBITS ENTERED INTO EVIDENCE - April 25, 2023

A. Exhibit Parent Description Page(s) Impartial hearing request, [REDACTED] 4 pages

B. Letter to CSE, [REDACTED] 4 pages

C. Ten-day notice letter, [REDACTED] 3 pages

D. Education goals, Progress report 21/22 15 pages

E. program description 21/22 7 pages

F. daily schedule 21/22 1 page

G. attendance sheet 21/22 1 page

H. Enrollment contract, 8/23/21 3 pages

I. Affidavit of payments, [REDACTED] 1 page

K. J [REDACTED] tax return 2 Affidavit of [REDACTED] 6 pages

L. Affidavit of [REDACTED] 4 pages

M. Pendency stipulation, 5/3/22 2 pages

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.