New York City Department of Education, Impartial Hearing Decision

NAMES AND TITLES OF PERSONS WHO APPEARED

JULY 20, 2022

For the Student:

REDACTED, ESQ., Attorney

For the Department of Education:

NONE

NAMES AND TITLES OF PERSONS WHO APPEARED

SEPTEMBER 21, 2022

For the Student:

REDACTED, ESQ., Attorney

REDACTED, Parent Student

REDACTED, Parent Student

REDACTED, PsyD, Associate Director of Neuropsychology, REDACTED Health System

For the Department of Education:

REDACTED, ESQ., Attorney

INTRODUCTION AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer ("IHO"), assigned to this matter on June 24, 2022 to address, Parent's Due Process Complaint ("DPC") filed on or about May 6, 2022. (P exhibit A) ^[1]. This is pursuant to appointment by the New York City Department of Education (DOE) under the Individual with Disabilities Education Act (IDEA), 20 United States Code §1415(f)(1).

The Parents allege that the DOE failed to provide and appropriate placement/program to their child for the 2020-2021 and 2021-2022 school years affectively denying her a FAPE. As such the Parents are seeking tuition reimbursement and prospective payment to REDACTED, transportation costs, and reimbursement for the independent neuropsychological evaluation.

The District did not present any testimonial or documentary evidence during the hearing.

The hearing Convened on September 21, 2022. Parents were represented by REDACTED, ESQ., from the Law Office of REDACTED; and the District was represented by REDACTED, ESQ.

Extensions were granted in accordance with the regulations and the record was closed on March 15, 2023, upon receipt of the remaining evidence. REDACTED

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 is a REDACTED-year-old child diagnosed with REDACTED. She is classified as a child with Other Health Impairment and has been known to the DOE as having a disability since as early as 2008. The Parent alleges that the IEPs or placements for the student failed to offer her an appropriate placement and services for the 2020-2021 and 2021-2022 school years.

ISSUES

1. Whether the student was denied a FAPE during the 2020-2021 and 2021-2022 school years?

2. Whether the student is entitled to reimbursement for the costs of tuition for the home program during the 2020-2021 school year and reimbursement for tuition at the REDACTED School for the 2021-2022 school year?

3. Whether the Parents are entitled to reimbursement for the independent neuropsychological evaluation? REDACTED

FINDINGS OF FACT

REDACTED is a student diagnosed with REDACTED, REDACTED disorder and a mild intellectual disability. (P exhibit H and EE) She has communication issues as well as issues with fine and gross motor skills. She needs consistent individualized attention and a therapeutic educational setting. She has received special education and therapies throughout her life including speech therapy, occupational therapy, and physical therapy. She has also 1:1 and group academic instruction, and social skills. (Parent exhibit GG).

On July 14, 2020, and July 21, 2022.the Parents contacted the DOE and request an IEP and school placement. The Parents also shared many reports and spoke in detail about the child's needs. When no placement was recommended by early September of 2020, the Parents notified the DOE of their intention to maintain the Student in the home program that she was in while they awaited for an IEP and placement. Her home program included academics, related services such as Physical Therapy, Speech Therapy, and social Skills. Tuition for the at home program was paid for by the Parents.

An IEP meeting was convened in October 2020 and the parent issued a letter expressing their disagreement with the recommendations as they believed that they did not appropriately address the needs of the Student. Such claim was supported by an independent neuropsychological evaluation that the Parent's shared with the DOE. (P exhibit H). The District issued a School Location Letter for the REDACTED, and when the Parent contacted a school representative, the Parents realized that the school was unaware of their child's acute educational, social and physical needs (P exibit A). In June 2021, the District once again placed the Student at the REDACTED School. The parents then toured the school and researched about the school and complained to the District about various concerns about what was found. (P exhibit GG). REDACTED The District did not contact the Parents regarding a placement for the beginning of the 2021-2022 school and the Parents placed their child at the REDACTED School. (P exhibit A)

In Fall 2021, the Parents attended another IEP meeting and shared their concerns about the placement. After that, the Parent's never received a placement letter.

At the unilateral placement for the 2021-2022 school year, the Student received Speech Language Therapy, Occupational Therapy, and Counseling, among other things. Over the course of the year the Student has improved in her ability to participate, reading comprehension and writing skills. She also has made progress in her speech and language skills, social aims, and self-advocacy goals. She has also improved in her math skills. As such it was concluded that the REDACTED school has met and continues to mee the students academic, social and emotional as well as vocational needs. Clinicians support eh Student's clinical goals through individual and small group sessions within her schedule. (P exhibit DD).

The psychologist that performed the neuropsychological evaluation concluded that the Disrict's recommended IEPs and placement were not appropriate for the student because the needs and featured general goals were not designed to promote her progress. They did not provide appropriate services and interventions for the student. The REDACTED School is too large and does not have the specialized program dedicated to student with this student's needs. She found however, that the REDACTED School and the REDACTED program that it administers to the Student is an appropriate education program for the Student as it addresses her specific learning needs, and she is making progress there. (P exhibt EE).

CONCLUSIONS OF LAW AND ANALYSIS

Case No. REDACTED

The decision in this case rests on a determination of the three-pronged test set forth by the United States Supreme Court in the Burlington case, which provided that a board of education may be required to pay for educational services obtained for a child by the child's 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. Dept. of Educ., Massachusetts, 471 U.S. 359 (1985); Florence County Sch. Dist. Four v. Carter, 510 US 7 (1993). ISSUE 1 - Appropriateness of School District Program

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); see also Tarlowe v. New York City Bd. Of Educ., 2008 WL 2736027 (SDNY July 3, 2008), noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the academic, developmental, and functional needs of the student. The IEP must accurately reflect the results of evaluations to identify the student's needs, establish annual goals related to those needs, and provides for the use of appropriate special education services. 34 CFR §300.320(a)(2); 34 CFR §300.320(a)(4); 8 NYCRR §200.4(d)(2)(iii); 8 NYCRR §200.4(d)(2)(v); see Application of the Board of Education, Appeal No. 14-104; Application of the New York City Department of Education, Appeal No. 13-121.

In this case, the district representative did not state that the DOE had provided the child with a FAPE for the 2020-2021 or 2021-2022 school years, neither did he provide any documentary evidence or witness testimony. The District also did not note any issues REDACTED concerning equity in this matter. For the reasons noted, I find the district failed to provide a FAPE for the student for the 2020-2021 and 2021-2022 school years. ISSUE 2 – Appropriateness of Parent Placement

Analysis turns to the second prong of Burlington, under which the parents bear the burden of proving the appropriateness of the services obtained for the student. M.S. v. Board of Education of the City of Yonkers, 231 F.3d 96, 104 (2d Cir. 2000); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 94-29; Application of a Child with a Disability, Appeal No. 95-57. In order to meet that burden, the parents must show that the Kids First offered an educational program designed to meet Student's special education needs. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985). A unilateral placement is only appropriate if it provides education instruction specifically designed to meet the unique needs of a handicapped child. Gagliardo v. Arlington Central School District, 489 F.3d 105 (2d Cir. 2007).

In this regard, I find that the parents have sustained their burden of demonstrating the appropriateness of their programs, including their home program during the 20220-2021 school year and the REDACTED program during the 2021-2022 school year. It was established through testimony and other evidence that the home program and the School provides the types of services and instruction that the Student is in need of. Also, it is found that she made significant progress in both the home program and the School, by the Parent, the school director, the home program coordinator, and the neuropsychologist. (P exhibit H, I, J, K, L, M, N, O, P, Q, R, T, U, V, W, X, Y, Z, EE, FF, GG). This evidence was not challenge nor rebutted. For all the above, I find that the Parent has demonstrated the REDACTED appropriateness of the home program for the 2020-2021 school year, and the program at REDACTED for the 2021-2022 school year for the Student.

ISSUE 3 – Equities

The third prong of the Burlington decision requires a balancing of the equities in determining whether reimbursement should be awarded. The Individuals with Disabilities Education Act (IDEA) provides that an award of tuition reimbursement may be reduced or denied if notwithstanding their being advised that they should do so, parents neither inform the CSE of their disagreement with its proposed placement and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the school district with written notice of such information ten business days before such removal. 20 U.S.C. §1412(a)(10)(C)(iii). In this case, the Parent did inform the Factors relevant to equitable considerations include whether the withdrawal of the student from public school was justified. The statutory provision serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a FAPE can be provided in the public schools. Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 (1st Cir. 2004); see also Frank G., 459 F.3d 356 (2nd Cir. 2006).In terms of equities, the District's claim that the Parent failed to raise an issue with the District's evaluation before seeking IEEs is unfounded as no evidence was offered to support that claim. Under the circumstances, analysis of equities would not prevent an award for the student's tuition at AU.REIMBURSEMENT. A hearing officer is empowered to grant relief he, she or the court determines to be appropriate. 34 C.F.R. §300.516(c)(3). Once such remedy is reimbursement REDACTED of tuition and related expenses. Florence Cunty Sch. Dist. Four v. Carter, 510 U.S. 7, IDELR 532 (1993); Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S.359, 103 LRP 37667(1985). A local education agency (LEA") may be required to reimburse parents for their tuition payment to a private school for the services obtained for the student by his or her parents if the services offered by the LEA were inadequate or inappropriate, the services selected by the parents were appropriate under the Act, and equitable considerations support the parents' claim for reimbursement. Id. In Burlington, the Court found that Congress intended retroactive reimbursement to parents by a Lea as an available remedy in a proper case. Burlington, 471 U.S.at 370-71. "Reimbursement merely requires [an LEA] to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper [IEP] Id. The mere fact that the private school placement does not bar the parents from reimbursement. Florence County Schl. Dist. Four v. Carter, 510 US. 7 (1993).The initial inquiry is whether the student's IEP and/or placement is/are "proper or "appropriate." School Comm. Of Burlington, 471 U.S. at 369 and 374. However, this initial inquiry may go beyond the appropriateness of the IEP and/or placement, See, e.g., Forest Grove v. T.A., 57 U.S. 230 (2009) (child find); P.C. v. Oceanside Union Free Sch. Dist., 818 F. Supp. 2d 516 (E.E.N.Y.

2011) (eligibility) Mr. N.C. v. Bedford Cent. School. Dist., 300 F. App's 11(2d Cir. 2008) inappropriate evaluation).

In this case, it was established that the District failed to timely evaluate and place the Student in an appropriate placement.

Should the hearing officer determine that the school district did not offer a FAPE to the student, the next inquiry is whether the parent's unilateral placement is appropriate" or "proper". School Comm. Of Burlington, 42 U.S. at 369 and 370; see also Carter 510 U.S. at 15. REDACTED

I find that the Parent demonstrated through documentary and testimonial evidence that the unilateral placement was appropriate for the student for the 2022-2023 school year. The final consideration is the balancing of the equites. In this step, the hearing officer must examine the action of the parents and school district, including:

1. Whether the parents failed to provide the school district with timely notice, either at the most recent IEP team meeting oar at least 10 business days prior to removal of the student from the public school of their rejection of the proposed public placement, including their concerns and intent to enroll the student in a private school at public expense. 20 U.S.C. § 1412(a)(10)(C)(iii)(I); 34 C.F.R. § 300.148(d)(1).

2. Whether prior to the student's removal, the school district informed the parents of its intent to evaluate the student, but the parent did not make the student available for the evaluation. 20 U.S.C. §1412(a)(10)(C)(iii)(II), 34 C.F.R. § 300.148(d)(2).

3. Whether the parents' action was unreasonable. 20 U.S.C.

§1412(a)(10)(C)(iii)(III), 34 C.F.R. § 300.148(d)(3).

4. Whether the cost of the private placement is unreasonable. Florence County Sch. Dist. Four v. Carter, 510 U.S. at 16.5. Whether there was a lack of parental cooperation with the school district. C.G. v. Five Town Community Sch. Dist., 513 F.3d 279 (1st Cir. 2008)

In this case, the Parent gave timely notice, and the District failed to timely and appropriately evaluate and place the Student. If find the Parent's action and the cost to be reasonable. Lastly, the District failed to demonstrate lack of cooperation on the Parent's part.

As such, the equities favor the parents for the 2020-2021 and 2021-2022 school years. REDACTED

ORDER

Based upon the above Findings of Fact and Conclusions of Law, it is hereby ordered:

1. DOE reimburse and/or directly fund the tuition for the child for the home program for the 2020-2021 school year and for REDACTED for the 2021-2022 school year;

2. DOE reimburse and/or directly fund the transportation costs for the 2020-2021 and 2021-2022 school years; and

3. DOE reimburse costs for the September 2020 neuropsychological evaluation.

SO ORDERED.

DATED: March 27, 2023

Annette Hicks Gill

ANNETTE HICKS GILL

Impartial Hearing Officer

Case No. REDACTED

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. REDACTED

APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

A. Due Process Complaint 05/06/2022 13 pages

B. Ten Day Notice 08/17/21 8 pages

C. Parent Letter to DOE with attached REDACTED Re: the DOE IEP and Placement 02/02/22 6 pages

D. Parent Letter to CSE with Attached Updated Progress Reports 10/19/2021 44 pages

E. Second Parent Letter to CSE Rejecting Placement 09/22/2021 18 pages

at PS REDACTED

F Parent Letter to CSE Rejecting Placement at PS 07/27/2021 5

REDACTED

G 01/14/2021 13

Parent Letter to CSE Re IEP and Placement H 09/29/2020 17

Parent Letter to CSE Re Neuropsychological

Evaluation with Attachment I 09/17/2020 19

Parent Letter to CSE Re IEP with Updated Reports J 08/28/2020 4 Parent Letter to CSE Rejecting Placement K 08/21/2020 63

Parent Letter to CSE Re with Attached Reports L 08/11/2020 4 Parent Letter to CSE with Attached Teacher Report M 07/21/2020 3

Second Parent Letter to CSE Re Request for IEP N 07/14/2020 2 N Parent Letter to CSE Re Request for IEP O 09/27/2020 15

Neuropsychological Report REDACTED, PsyD P

Occupational Therapy Evaluation Conducted by 08/07/2020 9

REDACTED OTRL, PAMS, SWC

Q 06/16/2020 14 Case No. REDACTED

Literacy Evaluation Conducted by REDACTED MA, CCC-SLPTDS Progress Report 2019-2020 R 10/2019 11

TDS Progress Report 2019-2020 S 06/24/2021 2

REDACTED School 2021-2022 Enrollment Contract T 10/20/2021 1

REDACTED School Letter Regarding Remote

Programming U 2021-2022 1

REDACTED School 2021-2022 Schedule V February 23

REDACTED School 2021-2022 Progress Report 2022

February W June 2022 24

REDACTED School 2021-2022 Progress Report X 06/27/2022 1 REDACTED School 2021-2022 Attendance Report Y Undated 6

REDACTED School Program Description Z Undated 5

REDACTED Remote Learning

Information AA 07/13/2022 2

REDACTED School Tuition Affidavit BB Undated 2

Resume of REDACTED CC 05/03/2017 6

CV of REDACTED, Psy.D. DD 09/19/2022 6

Affidavit of REDACTED EE 09/14/2022 6

Affidavit of REDACTED, Psy.D FF 09/16/2022 3

Affidavit of REDACTED, M.S., CCCSLP GG Undated 6

Affidavit of REDACTED

DOE'S EXHIBITS

None

IHO'S EXHIBITS

None

Footnotes

[1] 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.