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CASE NUMBER: 573271 - NYC: 226547
FINDINGS OF FACT AND DECISION
Case Number: 226547
Student’s Name: [REDACTED]
Date of Birth: 11/18/2011
District: [REDACTED]
Hearing Requested By: Parent
Date of Hearing: August 16, 2022
Record Closed Date: August 30, 2022
Date of Decision: September 1, 2022
Hearing Officer: Di’Indra Forgenie-Dhanantwari, Esq.
PROCEDURAL HISTORY
On June 29, 2022, I was appointed as the Impartial Hearing Officer (“IHO”) to conduct an impartial due process hearing pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 United States Code, § 1415(f)(1), Article 89 of the New York State Education Law, and Part 200 of the Regulations of the Commissioner of Education, concerning a dispute between the Parent of Student attending a Private School and the New York City Department of Education (“DOE”). This matter was initiated by the Parent’s Attorney by the filing of a Due Process Complaint (“DPC”) on May 19, 2022.[1] Parent alleges that the DOE denied Student a free and appropriate public education (“FAPE”) for the 2021-2022 school year.[2] As a remedy for this failure, Parent is seeking tuition reimbursement for Student’s unilateral placement at Private School for the 2021-2022 school year, beginning February 2022.
The compliance date for issuing a decision in this proceeding is September 1, 2022. A pre-hearing conference was held on July 13, 2022. The impartial hearing was held on August 16, 2022. A list of the witnesses who appeared and the documents taken into evidence is annexed to this decision. The record closed on August 30, 2022.
FINDINGS OF FACT
At the time of the DPC filing, Student was a [REDACTED]-year-old enrolled as a fifth-grade student in Private School, for the 10-month school year. [3] Student is classified by the DOE’s Committee on Special Education (“CSE”) as a student with a Learning Disability.[4] It is not disputed that the student is classified as a student with a disability and entitled to receive special education services.
On November 20, 2020 the CSE convened and developed an IEP for Student. The November 2020 IEP recommended a 12:1+1 special class in Math, English and Language Arts (“ELA”), Social Studies, and Sciences with related services in Counseling Services 1 time a week for 30 minutes in a group of 5 and Occupational Therapy (“OT”) 2 times a week for 30 minutes in a group of 2.[5] In February 2021 the Parent informed the school of her intent to disenroll the Student from the Public School. [6] In September 2021 the Parent called the Public School Psychologist and sent a letter to the School District requesting that the Student be moved from a 12:1+1 to an Integrated Co-Teaching (“ICT”) general education classroom and also stated she did not want the Student evaluated. [7] The Parent did not want the Student evaluated because she wanted to unilaterally place the Student in a “regular ed” in [REDACTED]. [8] On October 5, 2021 Prior Written Notice (“PWN”) was sent to the Parent.[9] In response to the Parent’s September 2021 request for a re-evaluation, on October 14, 2021 the CSE re-convened and developed a new IEP for the Student. As a result of that IEP meeting the CSE changed the Student’s placement to a less restrictive setting as requested by the Parent.[10] The October 2021 IEP recommended an ICT class for Math, ELA, Social Studies, and Sciences with related services in Counseling Services 1 time a week for 30 minutes in a group of 3 and Occupational Therapy (“OT”) 2 times a week for 30 minutes in a group of 2. [11]
On January 18, 2022 the Public School provided several educational records to the Parent who stated she needed the documents because she was applying to multiple [REDACTED]s. [12] On February 9, 2022 the Parent sent a Ten Day Notice (“TDN”) letter to the District requesting that the Student be immediately moved from the ICT class back to a 12:1+1 and that a behavioral plan be developed and implemented. The Parent also stated in the letter that ICT was not successful because the Student’s difficulties and challenges did not allow him to learn in that environment. The Parent then advised that if the issue was not resolved she intended to place the Student in a private special education program at the District’s expense.[13] At the time the Parent sent the TDN to the District the Parent had no intention of keeping the Student at the Public School and had already made the decision to move the Student to a [REDACTED]. [14] The record supports a finding that prior to the filing of the TDN the Student was already enrolled and attending the Private School. My rationale for such a finding is discussed in more detail below. On May 19, 2022 the Parent filed a DPC alleging that the DOE failed to provide Student with a FAPE for the 2021-2022 school year based on procedural and substantive violations and requested direct tuition reimbursement.
LEGAL FRAMEWORK
IDEA and the New York Education Law provide that children with disabilities are entitled to a FAPE. 20 U.S.C. § 1400 (d)(1)(A); Education Law §§ 4402(2)(a), (b)(2). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive IEP. 20 U.S.C. §§ 1401(9), (29). 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). 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. ex rel. Joseph F. v. Douglas County Sch. Dist. RE-1, 137 S. Ct. 988, 999 (2017). If a procedural violation has occurred, relief is warranted only if the procedural violation affected the student's right to a FAPE. Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381-82 (2d Cir. 2003); W.G. v. Bd. of Trustees of Target Range School Dist. No. 23, 960 F. 2d 1479, 1484 (9th Cir. 1992); J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 (2d Cir. 2000); 8 NYCRR § 200.5(4)(ii). School districts are obligated to provide the special education services listed in a student’s IEP. 20 U.S.C. § 1401(9)(D); 34 C.F.R. § 300.17(d).
IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE. 20 U.S.C. § 1415(f)(3)(E)(i). A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” Rowley, 458 U.S. at 203. However, the “IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP.” Walczak v. Florida Union Free School Dist., 142 F.3d 119, 130 (2d Cir. 1998); Rowley, 458 U.S. at 189. “The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.” Endrew F., 137 S. Ct. at 1001. The IDEA ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents.” Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989). Additionally, school districts are not required to “maximize” the potential of students with disabilities. Rowley, 458 U.S. at 189; Walczak, 142 F.3d at 132. Nonetheless, a school district must provide “an IEP that is likely to produce progress, not regression,’ and... affords the student with an opportunity greater than mere ‘trivial advancement.” Cerra v. Pawling Central School Dist., 427 F.3d 186, 195 (2d Cir. 2005), quoting Walczak, 142 F.3d at 130.
In actions brought under the IDEA alleging a denial of FAPE, “the court shall grant such relief as the court determines is appropriate”, limited only by the restriction that “the relief is to be appropriate in light of the purpose of the Act.” Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 454 (2d Cir. 2015) (citation omitted). Equitable considerations are relevant in fashioning relief, and the court enjoys broad discretion in doing so. Florence County Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7, 16 (1993). Although an award of damages is not available under the IDEA “a court may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies.” Doe v. East Lyme, 790 F.3d 440, 454 (2d Cir. 2015).
If a school district fails to provide a FAPE to a student with a disability, parents may enroll their child in a private school and seek funding/reimbursement for the cost of the program. Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 363 (2d Cir. 2006). An award of tuition funding/reimbursement would simply require a school district to pay for the expenses “it should have paid all along and would have borne in the first instance” had it offered the student a FAPE. T.P. and S.P. ex rel. S.P. v. Mamaroneck Union Free School Dist., 554 F.3d 247, 252 (2d Cir. 2009) [citation omitted].
A three-prong test often referred to as the “Burlington/Carter Test” applies to determine whether parents are entitled to tuition funding and/or reimbursement: (1) was the IEP proposed by the school district for the student appropriate; (2) was the private placement selected by the parents appropriate to meet the student’s needs; and (3) does a consideration of the equities relating to the reasonableness of the parents’ actions support the relief requested. Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 370 (1985); Carter, 510 U.S. 7, 12-13; C.F. ex rel. R.F. and G.F. v. New York City Dept. of Educ., 746 F.3d 68, 76 (2d Cir. 2014).
Under the Education Law, school districts have the burden of proof, including the burden of persuasion and burden of production, in due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement. Education Law § 4404(1)(c); T.K. and S.K. ex rel. L.K. v. New York City Dept. of Educ., 810 F.3d 869, 875 (2d Cir. 2016); C.F. ex rel. R.F. and G.F., 746 F.3d at 76; R.E. v. New York City Dept. of Educ., 694 F.3d 167, 184-85 (2d Cir. 2012).
ANALYSIS
PRONG I: Failure to Provide FAPE The DOE conceded it did not provide a FAPE to the Student for the 2021-2022 school year.[15] Additionally, the DOE did not object to or contest the evidentiary documents submitted by Parent’s attorney in support of Parent’s claims. Since the DOE bore the burden of proving it provided Student a FAPE, based upon the hearing record, I find that Student was denied a FAPE for the 2021-2022 school year. Accordingly, the Parent has met the first prong of the Burlington/Carter Test for tuition funding and/or reimbursement.
PRONG II: Student’s Placement at the Private School I must now consider whether the Parent met the burden of proving the appropriateness of the placement of Student in Private School. Once it is determined that a student has not been provided a FAPE, under New York law, the burden of proof shifts to the parents to show that their unilateral private placement was appropriate. A.D. v. Bd. of Educ. of City Sch. Dist. of City of New York, 690 F. Supp. 2d 193, 206 (S.D.N.Y. 2010) citing Schaffer ex. rel. Schaffer v. Weast, 546 U.S. 49, 58, 126 S. Ct. 528, 163 L. Ed. 2d 387 (2005) concluding that "the burden of persuasion lies where it usually falls, upon the party seeking relief"; N.Y. Educ. L. § 4404(1)(c) placing the burdens of production and persuasion as to the appropriateness of a unilateral placement on the parents. Thus, New York parents who believe that the state has failed to offer a FAPE act "at their own financial risk" when they choose to enroll their child in a private school. A.C. ex rel. M.C. v. Bd. Of Educ, 553 F. 3d 165, 171(S.D.N.Y. 2007).
When parents unilaterally place their child in a private program and seek funding and/or reimbursement for that program, they must demonstrate the program they have selected is appropriate to meet their child’s needs. A.D. ex rel. E.D., 690 F. Supp. 2d at 206 (S.D.N.Y. 2010). Parents are not barred from an award of tuition reimbursement or funding even if the private program does not meet the IDEA definition of a FAPE; the selected program need not employ certified special education teachers or develop its own IEP for the student, and parents’ selection of a program that has not been approved by the state does not bar reimbursement. Frank G., 459 F.3d 356 at 364 (citing Carter, 510 U.S. 7 at 14).
Parents need not show that a private placement provides every special service necessary to maximize their child’s potential, but only that it is likely to produce progress and not regression and provides “educational instruction specially designed to meet the unique needs of the... child, supported by such services as are necessary to permit the child to benefit from instruction.” Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007).
Private School The mission statement states the Private School, “educates children with learning and behavioral disabilities in a comprehensive day school program. A modified general education curriculum gives students appropriate instruction with needed accommodations. Through a program designed to stimulate intellectual curiosity in both secular and [REDACTED] studies, identify and use students’ strengths, and expand their knowledge, our students acquire the essential academic and social skills expected of all elementary students in New York State.” (Ex. C-4) Additionally, the Private School’s Program Supervisor testified at hearing that the Private School, “is a middle school program of approximately 20 students that is housed in a general education school building. We have approximately 20, approximately 20 students for the 2021-2022 school year. Our students are all students that are physically enabled yet behaviorally and academically challenged. [The Private School] program follows, aligns with ABA methodology, our curriculum is the Common Core, yet we modify and accommodate for each individual student as necessary. And there is academics as well as socioemotional and behavior for anything that’s interfering or impeding on their classroom learning. In addition, [the Private School] has a technology component that allows for our students to receive additional modification and accommodation in multiple areas of instruction as necessary.” [16]
Testimony of Program Supervisor at Private School I find that, the Program Supervisor of Private School, testified credibly, that Private School was able to offer Student small group instruction with a qualified teacher. The Program Supervisor testified as follows, that for the 2021-2022 school year the Student was placed in a 5th grade class containing 6 students with special needs. The Student had opportunities to interact with typically developing peers and his classroom had at least one licensed special education teacher at all times and an assistant. [17] When the Student entered the Private School socially and emotionally, he lacked impulse control, was hyperactive, unable to focus, was easily distracted, engaged in sensory seeking behaviors, and responded to frustration by destroying property, being aggressive, screaming, or throwing a tantrum. [18] When the Student entered the Private School academically, he lacked organization skills, executive functioning, comprehension and language skills. The Student was also delayed in Math and struggled with computation and generally had challenges across the board. [19]
To address the Student’s social needs the Private School performed a Functional Behavior Assessment (“FBA”) on January 25, 2022. The FBA notes the Student’s School as the Private School, notes the Student’s teacher at the Private School, and the Student’s grade. According to the Private School the FBA was developed based on observations of the Student, teacher report and anecdotal, interview with parent and teacher as well as a parent interview, staff interviews, and information from the Student’s IEP. The FBA states that a classroom setting is challenging for the Student and he struggles to focus and follow teacher demands and classroom routines and he engages in classroom seeking behavior. [20] The Baseline Data included in the FBA notes, the Student’s deficits cause him to engage in a variety of maladaptive behaviors, he is non-compliant and ignores the teacher eight times a day, annoys his peers four times a day, and lacks social boundaries.[21] To address these issues the Private School developed a Behavior Intervention Plan (“BIP”) dated February 1, 2022. The BIP notes that the Student struggles to follow along with classroom lessons and routines and apply himself to his work. Additionally, the BIP notes the Student is currently learning in a small group setting where he is receiving individualized attention and a modified curriculum but that he is working towards mastering behavior and social skills that will enable him to function in a classroom setting.[22] Although progress is not necessary to a determination that a Private School is appropriate the Student appears to have also progressed academically during his time at the Private School as documented in the Student Report Card. [23]
Based on this uncontroverted evidence I find that the Private School was an appropriate placement for Student and was sufficient to establish the burden of the preponderance of the evidence standard under Prong II of the Burlington/Carter Test for tuition funding and/or reimbursement.
Student’s Enrollment in Private School
I do not credit the Program Supervisor’s testimony, the Parent, and Private School’s claim that the student began school in February 2022.[24] I find instead, and the hearing record supports the assertion that the Student started at some point in January 2022, although it is not clear when in January the Student started.
The Parent stated at hearing that the Student attended the Public School from September 2021 to January 2022 [25] and the Student was transferred in January to the Private School. [26] The Parent’s contradictory statement at hearing is supported by the Private School’s attendance record which documents the Student’s presence at the Private School as early as January 3, 2022 [27], the school contract that shows the Parent enrolled the Student on January 20, 2022 [28], and the FBA and BIP that included classroom observations of the Student at the Private School at some point prior to its development respectively on January 25, 2022 and February 1, 2022. I therefore find, the Student was already enrolled and attending the Private School at the time the TDN was filed.
PRONG III: Equitable Considerations
Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M. C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]). Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters" (Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]). With respect to equitable considerations, a parent may be denied reimbursement upon a finding of a failure to cooperate with the CSE in the development of an IEP or if the parent's conduct precluded the CSE's ability to develop an appropriate IEP (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 86 [3rd Cir. 1999]; see Application of the Bd. of Educ., Appeal No. 04-102; Application of the Bd. of Educ., Appeal No. 04-026). In the absence of evidence demonstrating that a parent failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a claim of reimbursement (Application of a Child with a Disability, Appeal No. 04-049).
From the time the Parent expressed a desire to remove the Student from the Public School and place him at a [REDACTED], as early as February and September 2021[29], the District tried to work with the Parent to accommodate the Student. The District requested evaluations to reassess the Student’s needs and the Parent refused in September 2021 and February 2022, the District changed the Student’s program at the request of the Parent, [30] and the Parent requested that the Program be changed back citing the Student’s inability to progress in the ICT setting. However, I find, based on the hearing record, that the Parent’s request to change the Student’s program from a 12:1+1, to ICT, back to a 12:1+1 was based on her conversation with the [REDACTED] and their recommendation and not because she wanted to work with the school to maintain the Student’s enrollment in Public School. [31]
In addition to finding the Student was already enrolled and attending the Private School at the time the TDN was filed, I also find the Parent requested a change in the Student’s program in September 2021 and February 2022 to accommodate his special education program in the new School, and she had no intention of working with the District to keep the Student enrolled in the Public School. I also find, based on the evidentiary record, that the actions of the Parent prevented the District from developing a proper and appropriate IEP because the Parent refused to have the Student evaluated despite her claim that the Student needed a different placement. Based on the overwhelming evidence, I cannot credit the Parent’s claim that she gave the District an opportunity to resolve this matter. I therefore find, the Parent did not provide the District with proper notice of her intent to remove the Student from the Public School. Accordingly, the Parent has not met the third prong of the Burlington/Carter Test for tuition funding and/or reimbursement.
DECISION AND ORDER
Given the circumstances in this case, I find that the equities weigh in favor of the District and therefore decline to award tuition reimbursement to the Parent for the 2021-2022 school year for the Private School.
It is hereby ORDERED that tuition reimbursement be denied.
I have considered the parties' remaining arguments and find them unnecessary to address considering my determinations herein.
DATED: SO ORDERED
9/1/2022 - Amended 9/2/2022 /s/ Di’Indra Forgenie-Dhanantwari
Di’Indra Forgenie-Dhanantwari, Esq., IHO
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.
DISTRICT EVIDENCE
Exhibit
Title
DATE
Pages
1
DPC
5/19/22
7
2
October 2021 IEP
10/14/21
20
3
SESIS Events Log 2020/2021
Various
7
4
SESIS Events Log 2021/2022
Various
4
5
Psychoeducational Evaluation Report
10/25/18
7
6
Request for Reevaluation
9/23/21
1
7
Prior Written Notice
10/5/21
5
8
Special Education Recovery Services
11/1/21
3
9
Declined Consent to OT Services
10/18/21
1
10
November 2020 IEP
11/21/20
22
PARENT EVIDENCE
Exhibit
Title
Date
Pages
A
Request for Due Process Proceeding and Notice of Appearance
05/19/2022
7
B
IEP
10/14/2021
20
C Student Contract, Program Description, and Curriculum 01/20/2022 19
D Affirmations regarding Tuition Breakdown and Payments 08/09/2022 2
E Curriculum Schedule 2021-2022 1
F Student Attendance 2021-2022 1
G Assessments, Plans, and Reports Various 27
H Ten Day Notice from Parent to DOE 02/09/2021 2 Footnotes
[1] See Ex. A.
[2] Id.
[3] Ex. B-1
[4] Id.
[5] Ex. 10 at p.14-15
[6] Ex. 3-001
[7] Ex. 4-004 and Ex. 6
[8] Tr. 8/16/22 at p. 62 lines 5-9 & 21-24 & p. 73 line 22 – p. 74 line 1-10
[9] Ex. 7
[10] Ex. 2
[11] Ex. 2-013
[12] Ex. 4-001
[13] Ex. H-2
[14] Tr. 8/16/22 p. 66 lines 14-16
[15] Tr. 8/16/22 at p. 21
[16] Tr. 8/16/22 p. 31 line 25 - p. 32 line 2
[17] Tr. 8/16/22 p. 32 line 11 - p. 33 line 7
[18] Tr. 8/16/22 p. 33 line 11 – p. 35 line 5
[19] Tr. 8/16/22 p.35 line 6 – p. 36 line 7
[20] Ex. G
[21] Ex. G 5
[22] Ex. G 13
[23] Ex. G 25-27
[24] See DPC generally, Ex. D-1, and Tr. 8/16/22 p. 32 lines 11-14
[25] Tr. 8/16/22 p. 54 lines 3-7
[26] Tr. 8/16/22 p. 63 lines 8-12
[27] Ex. F-1
[28] Ex. C 2-3
[29] Ex. 4
[30] Ex. 6, 7, and 2
[31] Tr. 8/16/22 p. 61 lines 8-19; p. 62 lines 5-9 & 16-25; p. 73 line 22 – p. 74 lines 1-13.