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FINDINGS OF FACT AND DECISION
NAMES AND TITLES OF PERSONS WHO APPEARED
JUNE 30, 2022
For the Student:
REDACTED Parent Attorney
For the Department of Education:
REDACTED DOE District Representative, CSE 9
NAMES AND TITLES OF PERSONS WHO APPEARED
JULY 18, 2022
For the Student:
REDACTED Parent Attorney
For the Department of Education:
REDACTED DOE District Representative, CSE 9
NAMES AND TITLES OF PERSONS WHO APPEARED
AUGUST 16, 2022
For the Student:
REDACTED Parent Attorney
For the Department of Education:
REDACTED DOE Consultant Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
SEPTEMBER 14, 2022
For the Student:
REDACTED Parent Attorney
For the Department of Education:
REDACTED DOE Consultant Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
OCTOBER 12, 2022
For the Student:
REDACTED Parent Attorney
For the Department of Education:
REDACTED DOE Consultant Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
NOVEMBER 14, 2022
For the Student:
REDACTED Parent Attorney
For the Department of Education:
REDACTED DOE Consultant Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
DECEMBER 13, 2022
For the Student:
REDACTED Parent Attorney
For the Department of Education:
REDACTED DOE Consultant Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
JANUARY 31, 2023
For the Student:
REDACTED Parent Attorney
REDACTED Head Teacher @ REDACTED
For the Department of Education:
REDACTED DOE Consultant Representative
INTRODUCTION
On June 24, 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 DOE on or about May 4, 2022. The DPC is carried under New York City ("NYC") Case No: 226205. The impartial hearing was held over a series of dates to complete the record on January 31, 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 March 1, 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 with significant global delays, known to the DOE as a student with a disability, and classified "Learning Disability" (Exhibit A). Parent alleges the IEP fails to properly classify REDACTED (Exhibit R) as due her extremely low functioning range of cognitive abilities ought to be classified "Intellectual Disability" (Exhibit T and T @ 55-56). The Parent alleges for the 2021/22 school year, the DOE failed to offer REDACTED a free appropriate public education (FAPE), both on procedural and substantiative grounds. The Parent presented a series of allegations to support her claim that the proposed IEP was inappropriate and insufficient to offer REDACTED a FAPE, including but not limited to (1). the IEP does appropriately establish REDACTED's present levels of performance as there is no record of any normed evaluations used to create the IEP - the last evaluation was conducted in 2017 (Exhibit B) and the DOE failed to conduct a triennial evaluation by the due date of November 2020 (T @ 56); (2). REDACTED's current classification is improper as her measured ability levels are consistently in the "Extremely Low Range", with a Full Scale IQ of 51, thus her current classification presents a vastly different learning profile than one with her intellectual disability; (3). the IEP 12:1:1 program recommendation is not sufficiently supportive for REDACTED; (4). the REDACTED failed to offer a translated copy of the IEP regardless acknowledging a need for language access service; (5). the DOE failed to offer REDACTED an appropriate placement; and (6). although the IEP recommends an extended school year, the DOE failed to meet the deadline in providing the school location letter. The Parent gave notice of her concerns to the DOE of its failure to provide REDACTED with an appropriate program and placement and gave notice of her intent to unilaterally re-enroll REDACTED at REDACTED (REDACTED) and seek funding (Exhibit Q), where she had been enrolled since the 2019/20 school year (T @ 56). As a remedy for the DOE's failure to provide REDACTED a FAPE for the 2021/22 school year, the Parent filed a Due Process Complaint (DPC) seeking for the DOE to fund the tuition, costs, and expenses of REDACTED's program at REDACTED along with provision of round-trip transportation and seeking a reimbursement for in-person meal costs (Exhibit R). At the hearing, Parent waived requested relief of transportation representing the issue as moot as the school year in question had completed (T @ 71).
In an effort to support her position, the parent submitted a documentary exhibit package consisting of twenty pieces of evidence (Exhibits A-T), which included the testimony of two witnesses: REDACTED, Special Education REDACTED (Exhibit S) and REDACTED, parent/mother (Exhibit T).
At the hearing, the DOE formally conceded to failing to provide REDACTED with a FAPE for the 2021/22 school year (T @ 49), and opted not to submit any documentary evidence or present any witnesses, briefly cross-examined Parent witness REDACTED and failed to deliver a closing statement (T @ 50, 54-55, 78).
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:
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, DOE conceded Prong I and therefore no further analysis is warranted as the Parent has met the first of the three Burlington/Carter criteria for tuition reimbursement. 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).
REDACTED is represented as an institution that "serves students with moderate to severe developmental or cognitive disabilities; our program provides modified academic instruction, programming, vocational training and integrated related services to students working towards their individual goals. At REDACTED we believe that in designing programs for students that are highly individualized, we create independence in the school, home and work environments while preparing students for meaningful and purposeful lives" (Exhibit S) and (Exhibit I).
REDACTED testified:
"I saw a big jump in REDACTED 's maturity and ability to advocate for herself, which means she knows -- she's able to monitor her understanding and her learning enough to know what she needs help with, which is a really big – an area of progress for her over the course of that year. And then we also saw some progress in regards to her reading, her comprehension and decoding. And so that was - those were the areas that I'm looking at REDACTED in terms of her progress" (T @ 66);
"So at all times during academic classes or during class -- all classes, REDACTED is with three adults, so two paraprofessionals supported by a teacher. Unless she's in humanities, which is the social studies, ELA, and then she is with two teachers and two paraprofessionals, so four adults" (T @ 76-77).
In the case at hand, the DOE did not provide any witnesses to rationalize its recommended program and/or placement for REDACTED. The DOE cross-examination of parent witnesses did not generate a material challenge to parent assertions. Contrarily, the evidence and testimony presented by the parent supports that REDACTED was an appropriate placement for REDACTED during the 2021/22 school year. I credit the testimony (Exhibits S and T, T @ 61-77) submitted herein 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 (Exhibit P) and one in which she was able to make progress (Exhibits J, K, S and T). For the 2021/22 school year REDACTED was placed in a class of 8 students , 1 teacher and 2 paraprofessionals during the first semester and in a class of 12 students, 1 teacher, 1 assistant teacher and 2 paraprofessionals for the second semester (T @ 57, 66-68). Further, the program at REDACTED provided frequent supervised off-site trips to practice and implement daily living skills (T @ 57). I find the evidence to substantiate the program at REDACTED to offer a small supportive environment with intensive 1:1 and small group instruction, modifications and supports geared to the development of academic, adaptive life, daily living and social-emotional skills required by REDACTED to make progress.
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 she received a highly individualized instruction that enabled her 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. 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 parent was anything other than cooperative. The DOE did not present any evidence or testimony regarding the equity considerations for the 2021/22 school year. The DOE representative specifically so stated (T @ 54-55). 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 Parent timely put the DOE on notice of REDACTED's unilateral placement and her intent to seek reimbursement (Exhibit Q).
This case involves a situation where the Parent's financial circumstances limit her ability to make payment to REDACTED (Exhibit T). 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
1. The Department of Education shall provide prospective funding for the cost of the student's tuition at REDACTED for the 2021/22 school year in the amount of $78,775.00;
2. While the relief of transportation was represented as moot herein, the Department of Education maintains responsibility to provide the student with round-trip transportation to and from REDACTED; and
3. The Department of Education shall reimburse the costs of student's in-person school meals in the amount of $1,570 for the 2021/22 school year.
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 any Pendency Agreement.
Dated: March 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 279 and model forms are available at http://www.sro.nysed.gov.
DOCUMENTATION ENTERED INTO THE RECORD ON JANUARY 31, 2023
A. Parent: IEP, 02/24/21 - 33pp
B. NYC DOE Psycho Ed. Evaluation, 11/20/17 - 5pp
C. Prior Written Notice and SLL 2020/21, 06/15/20 - 12pp
D. Prior Written Notice and SLL 2021/22), 06/16/21 - 10pp
E. Request for SLL Information (email), 06/22/21 – 1pp
F. Enrollment Contract, 05/06/21 - 3pp
G. REDACTED Financial Affidavit, 04/25/22- 1pp
H. REDACTED Remote Learning Letter and Information October 2021 - 6pp
I. REDACTED Middle School Program Description Undated - 7pp
J. First Semester Progress Report, 02/04/21 – 25pp
K. Second Semester Progress Report, 06/17/21 – 27pp
L. First Semester Schedule, Undated -1pp
M. Second Semester Schedule, Undated -1pp
N. 2021/22 School Year Attendance, 01/06/23 -1pp
O. School Meals Menu and Sample Receipts, Undated - 3pp
P. Letter from Teacher, 05/13/19 – 2pp Q. TDN 06/16/21, - 2pp R. DPC, 05/04/22 – 5pp
S. Witness Affidavit, REDACTED (REDACTED), 01/23/23 -5pp
T. Witness Affidavit, Petitioner (Parent REDACTED), 01/22/23 -6pp