New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 226077

Student's Name: REDACTED

Date of Birth: REDACTED

District: REDACTED

Hearing Requested By: Parent

Date of Hearing: July 6, 2022

August 8, 2022

September 8, 2022

October 7, 2022

November 21, 2023

December 20, 2022

December 29, 2022

January 17, 2023

February 22, 2023

March 20, 2023

Actual Record Closed Date: April 1, 2023

Hearing Officer: Judith Schneider, Esq.

An Impartial Hearing for the New York City Department of Education ("DOE" or "the district") Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York, pursuant to the Individuals with Disabilities Education Improvement Act ("IDEIA"), 20 U.S.C. §1415, and Article 89 of the Education Law of the State of New York, regarding the special education program of REDACTED ("the student") was conducted by me (remotely via teleconference.)

Procedural History

The proceeding was initiated at the request of the parent by correspondence dated April 28, 2022 (Ex. A) I was appointed Impartial Hearing Officer on May 2, 2022. A prehearing conference was conducted on June 2, 2022. Status conferences were conducted on July 6, 2022, August 8, 2022, September 8, 2022, October 7, 2022, November 21, 2022 and December 29, 2022. The evidentiary hearing was conducted on January 17, 2023, February 22, 2023 and March 20, 2023.

Parties moved to extend the compliance date on various occasions for settlement discussions, anticipated testimony, the scheduling of witnesses and submission of evidence, receipt and review of the transcript and issuance of the decision. 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 this matter. Accordingly, the requests for extensions of the compliance dates were granted.

The current compliance date is May 8, 2023. The record closed on April 1, 2023 upon my receipt of the final transcript.

Positions of the Parties

The parent asserts that the March 24, 2021 was not appropriate, that a placement was not provided and that, accordingly, the district failed to provide a FAPE for the 2021-2022 SY. The parent unilaterally enrolled the student in REDACTED ("School") which the parent asserts was appropriate and seeks DOE funding through direct payment to the School for the secular portion of the program ($95,000). The parent asserts that equities support the entirety of the funding requested. (Ex. A; T168-175)

The district did not assert a position with regard to the claim that it failed to provide a FAPE and presented no evidence in this matter. However, it asserts that the parent failed to met the parent's burden to establish the appropriateness of the placement noting specifically a claim that the student did not meet relevant goals and accordingly failed to make appropriate progress. With regard to equities the district claims that equities support the district and asserts that evidence shows that the student was enrolled in the School on the same date that notice to the district was provided demonstrating that the parent did not intend to accept any district placement and therefore had not cooperated as required. (T176-179)

Cases Presented

The district presented no evidence, testimonial or documentary. The parent submitted documents for admission into evidence (a list of documents in the record is appended) and presented the testimony of the Supervisor at the School ("supervisor") ; the student's mother ("parent".)

Findings of Fact and Conclusions of Law

A Factual Findings

The 2021-2022 SY was the student's second grade year and he had attended the School in the first grade. (Ex. B) The student's overall level of adaptive functioning on testing in January 2020 was in the 4th %ile and his communications, daily living and socialization scores were in the 5th – 6th %ile. He is academically challenged, highly distractible, requires repetition and practice and struggles to follow directions due to behavioral challenges. (Exs. B, G, H; T86-97)

The CSE convened on March 24, 2021, classified the student as speech or language impaired and recommended: 12:1:1 for 15 periods a week and related services of counseling, occupational therapy ("OT") and speech-language therapy ("SLT"). (Ex. B) The parent did not receive a placement from the district. (T 159)

On August 16, 2021, the parent executed a contract with the School for a 10 month program at a cost of $100,000 including related services and asserts that the religious portion of the program was 5% of the entirety. (Ex. C,E ;T 108,173) The parent is financially unable to pay the School and seek reimbursement. (T157)

By correspondence dated August 16, 2021 the parent informed the CSE that the student had not received a "proper or adequate placement" and would be placed at the School for the 2021-2022 SY and district funding sought in the event the matter was not resolved. (Ex. I) The parent received no response. (T159)

B Conclusions of Law

The legal standard applicable to a request for reimbursement for educational services is well established. Reimbursement is granted if: (1) the services offered by the Board of Education are inadequate or inappropriate (Prong 1); (2) the services selected by the parent are appropriate (Prong 2) ; and (3) equitable considerations support the parent's claim (Prong 3). Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Department of Educ. of Mass., 471 U.S. 359 (1985). In New York State the DOE bears the burden of proof with regard to Prong 1 and Prong 3 and the parent bears the burden of proof with regard to Prong 2. Educ. Law 4404[1][c] Prospective payment for tuition may be ordered by an impartial hearing officer when a child would otherwise be denied a free appropriate education and the parent can show financial inability to pay the tuition and then seek reimbursement. Mr. & Mrs. A v. New York City Dep't of Educ., 769 F. Supp. 2d 403 (S.D. N.Y. 2011). See also, Connors v. Mills, 34 F. Supp 2nd 795 at 806, n.7 (N.D. N.Y. 1998)

Prong ^[1]

The district presented no evidence and did not assert that it provided a FAPE for the 2021-2022 SY. I note that allegations left unchallenged are deemed as true "unless found to be inconsistent with the evidence in the record." See Appeal No. 01-044; see also Appeal No. 12-006. Although the IEP is in the record an IEP does not on its own without testimony to explain its appropriateness and establish that a FAPE has been provided. See e.g. R.E. v. N.Y.C. Dep't of Educ., 694 F. 3d 167, 185-186 (2d Cir. 2012); L.O. v. N.Y.C. Dep't of Educ., 822 F2d 95,111 (2d Cir. 2016)

I conclude that the district has not met its burden to establish that it provided a FAPE.

Prong 2

When a public school system has failed to provide FAPE, the program and services chosen by the parent are "proper under the Act" if the education provided is "reasonably calculated to enable the child to receive educational benefits." Carter, 510 U.S. at 14. The parents bear the burden of proof with regard to the services obtained by the parents for the student. However, parents are not barred from reimbursement if their program does not meet the IDEA definition of a FAPE. See 20 U.S.C. §1401(9), Frank G. v. Bd. of Educ. of Hyde Park., 459 F. 3d 356 (2nd Cir. 2006). It is not required that the provider of the services be State-approved to provide instruction to children with disabilities. Carter, 510 U.S. at 10. The student need not be the least restrictive environment. Frank G, 459 F. 3d at 364.. "Ultimately the issue turns on whether a placement…is 'reasonably calculated to enable the child to receive educational benefits.' [internal citations omitted] …", Frank G, 459 F. 3d at 130. No one factor is necessarily dispositive in determining that. Bd. of Educ.

v. Rowley, 458 U.S. 176, 207 (1982). Parents 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. Id. at 364-365. See also Gagliardo v. Arlington Cent. Sch. Dist., 489 F 3d. 105, 115 (2d Cir. 2007). A finding of progress is not required for a determination that a student's unilateral placement is adequate. Scarsdale Union Free Sch. Dist. V. R.C., 2013 WL 563322, at *9-*10 [S.D.N.Y. Feb. 4, 2013]; see also Frank G., 459 F. 3d at 364. However, a finding of progress is, nevertheless, a relevant factor to be considered. Gagliardo, 489 F.3d at 115. However, the program should be reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances. Endrew F. v. Douglas County School District, 580 U.S. ___ (2017), 2017 WL 1066260 (March 22, 2017). Although the restrictiveness of a parental placement may be considered as a factor in determining entitlement to an award of tuition reimbursement, parents are not as strictly held to the standard of placement in the LRE as are school districts. C.L. v. Scarsdale UFSD, 744 F. 3d 826, 830, 836-37 (2d Cir. 2014); see Carter, 510 U.S. at 14-15; M.S., 231F.3d at 105 and "the totality of the circumstances" must be considered in determining the appropriateness of the unilateral placement, Frank G., 459 F. 3d at 64.

Credible and unrebutted testimony establishes that the School was created for students with behavioral challenges and language delays affecting their performance in academics and the classroom environment and is housed in a general education school with mainstream opportunities are provided. (T82-83) It has 55 students K-5 at that location. (T137) It follows the Common Core curriculum with appropriate modifications and accommodations for the students and its instruction is aligned with ABA principles. (T82-83) The student was in an 8:1:1 2nd grade class with similar aged students, all with special needs, headed by a special education teacher. (T84-86, 111-112) Staff includes BCBAS and appropriately licensed OT, SLT and Counseling providers. (T138-139, 144) The student received OT, SLT and counseling. (T108) His program also addressed social skills deficits. (Ex. E) An FBA was conducted and a BIP was developed. (Ex. G, 98, 126-127) Students are assessed quarterly on standardized instruments and via a computer program which inputs all ABA data s well as informally. (T113-115) Team meetings are held weekly and staff has ongoing access to the computer program recording student progress in all areas.. (T144) A Treatment Plan including goals was developed. (Ex. G; 99-106) The student made progress in all domains. (Exs. G23-41; T102-208, 115-118, 130) The district's sole claim with regard to the program provided was that it did not achieve "goals" to meet third grade proficiency. (T176-177) However, as discussed above, it is well established that progress is only one factor to be considered in determining the appropriateness of a unilaterally selected program. Further, the Supervisor persuasively testified that meaningful progress was demonstrated by the growth of one year in the same period as generally occurred in this matter. . (T116-117) I conclude that meaningful progress has been demonstrated.

I find that the placement provided the student with educational instruction that was specifically designed to meet the student's unique special education needs, supported by such services as were necessary to permit the student to benefit from instruction. I conclude that the parent's burden to establish that the program was appropriate has been met.

Prong 3

The determination of whether equitable factors support a parent's claim for tuition reimbursement hinges, in large part, on whether or not a parent cooperated with the DOE and CSE. See generally Burlington, 471 U.S. 359; Carter, 510 U.S. 7; see also Mr. & Mrs. A ex rel. D.A. v. N.Y.C. Dep't of Edu., 769 F. Supp. 2d 403, 430 (S.D.N.Y. 2011); see also N.R. ex rel. T.R. v. Dep't of Educ. of City Sch. Distr. Of N.Y., No. 07 Civ. 9648, 2009 WL 874061, at *14 (S.D.N.Y. Mar. 31, 2009). It is well established that a parent's subjective intent, or preference for a nonpublic educational setting, is not relevant to a determination of the equities, even if, in seeking tuition funding, the parent has, as "[p]resumably, nearly all parents who make unilateral placement . . . and then seek tuition reimbursement, act[ed] at least in part out of a hope, belief, or expectation that the school district [would] ultimately be forced to fund [the] placement," Mr. & Mrs. A. ex rel. D.A., 769 F. Supp. 2d at 430; see also N.R. ex rel. T.R. 2009 WL 874061, at *14. See also C.L. v. Scarsdale UFSD, 744 F. 3d 826 (2d Cir. 2014) ("[Parents] pursuit of a private placement was not a basis for denying their tuition reimbursement, even assuming…that the parents never intended to keep [the student] in public school.")

The district asserts parental non-cooperation on the sole ground that the parent had signed an enrollment contract on the same date she notified the CSE of her intentions indicating, the district claims, that she did not intend to place the student in a public school. However, as discussed above, that is not a bar to the relief sought by the parent. In this matter, the parent participated in the review and there is no claim or indication that she failed to cooperate in the development of the IEP. Further, timely notice of her intention was provided to the district. The district did not respond. The district bears the burden of proof with regard to a determination as to equities. I find no basis for denial or reduction in district funding urged by the district in the totality of the circumstances here.

The parent has established financial inability to pay and seek reimbursement. The parent does not seek funding for the part of the program it deems religious and calculates that is 5% of the School's program (a reduction of $5000.) (Ex. E; T108, 173) That claim has not been contested or rebutted. Accordingly, payment will be limited to $95,000.

ORDER

It is hereby ordered that:

The district shall pay the School $95,000 for the secular portion of the student's program for the 2021-2022 SY. The district may require evidence of attendance and that the tuition charged was the School's usual and customary rate.

Dated: April 12, 2023

_________/s/

JUDITH SCHNEIDER, ESQ.

Impartial Hearing Officer

PLEASE TAKE NOTICE

The parent and/or the New York City Department of Education has a right to obtain a review of this decision by a State Review Officer of the New York State Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act. The Department of Education has designated the New York City Law Department to accept service of papers on its behalf, including appeals of decisions of Impartial Hearing Officers. Such service is made at 100 Church Street, New York, NY 10007 at the Messenger Center.

EXHIBITS

None

A. Parent Request for Due Process Proceeding and Notice of Appear., 04/28/2022, 7 pgs.

B. IEP, 03/24/2021, 18 pgs.

C. Student Contract, Program Description and Curriculum, 08/16/2021, 15 pgs.

D. Affirmations regarding Tuition Breakdown and Payments 01/10/2023, 2 pgs.

E. Curriculum Schedule, 2021-2022, 1 pg.

F. Student Attendance, 2021-2022, 1 pg.

G Assessments, Plans, and Reports,Various dates, 42 pgs. (Index for Ex. G at G1)

H. Psychoeducational Evaluation, 01/29/2020, 5 pgs.

I. Ten Day Notice from Parent to DOE, 8/7/2014, 1 pg. Impartial Hearing Officer NONE

Footnotes

[1] Record references not specified below are stated above.