New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 573314 - NYC: 226573

FINDINGS OF FACT AND DECISION

Student's Name ^[1]: [REDACTED] ("Student")

Date of Birth: [REDACTED]

School District: [REDACTED]

Hearing Requested by: [REDACTED] ("Parent")

Request Date/Date Complaint Filed: May 22, 2022

Date(s) of Hearing: May 22, 2023

Actual Record Closed Date: May 26, 2023

Date of Decision: June 7, 2023

Date of Distribution if Different than Decision Date: n/a

Hearing Officer: Rachel Gibbons, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

MAY 22, 2023

For the Student:

[REDACTED] Attorney (Via videoconference platform)

Parent Parent (Via videoconference platform)

[REDACTED] Principal (Via videoconference platform)

For the Department of Education:

[REDACTED] Attorney (Via videoconference platform)

INTRODUCTION AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer ("IHO") on Parent's Due Process Complaint ("DPC") filed against the New York City Department of Education ("DOE" or "District") on or about May 22, 2022. (P-Ex. A) ^[2]. The DPC alleged, inter alia, that the District failed to provide the Student with a free appropriate public education ("FAPE") for a part of the 2021-2022 extended school year, from December 2021 through June 2022. (P-Ex. A).

This IHO was appointed on June 29, 2022. A prehearing conference was held on July 11, 2022. Numerous status conferences were held throughout the year, as this matter was on the settlement track until the District suddenly requested a hearing on May 1, 2023.^[3] (See Tr 51). A closed hearing on the merits commenced on May 22, 2023. The Parent was represented by [REDACTED]. The Parent presented affidavits in lieu of direct testimony for two witnesses, both of whom were available for cross examination at hearing: the Parent herself and [REDACTED], the Principal ("Principal") of the [REDACTED], a center-based [REDACTED] preschool special education program ("the Preschool"). (See P-Ex. M p. 1 ¶ 2). The Parent entered into evidence 14 exhibits. (P-Exs. A-N).^[4] The DOE was represented by [REDACTED]. The DOE entered into evidence four exhibits. (D-Exs. 1-4). The DOE presented no witnesses. The compliance date was extended numerous times to allow for settlement discussions. The record was closed on May 26, 2023.

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 has diagnoses of cerebral palsy, seizures, and global delays. (P-Ex. N p. 1). At the start of the 2021-2022 school year, the Student was nearly three years and enrolled in an 9:1:2 NYS approved classroom ("Approved Classroom") at the Preschool. (P-Ex. N p. 2 ¶ 11). By late fall 2021, after the Student had failed to make appropriate progress, the CPSE reconvened and developed a new IEP dated November 29, 2021. (Tr 73, P-Exs. L p. 1; M p. 3). The November 2021 IEP recommended a 6:1:2 classroom in a [REDACTED] center-based program, with related services, a 1:1 paraprofessional, and additional dual recommended related services to take place outside the school. (P-Ex. M). The Parent alleges that the District failed to locate and offer a placement that could provide the recommended program. (P-Ex. M p. 2). As a result, she unilaterally placed the Student in a 6:1:2 classroom at the Preschool ("Private Classroom"), which is not approved by the State. (Id.)

ISSUES

The DPC alleged that the District failed to provide a FAPE for the Student from December 2021 through June 2022, because the District failed to identify and offer a seat in a 6:1:2 [REDACTED] center-based program. (P-Ex. A). The Parent provided documentary evidence and witness testimony to support her claim. The Parent requested as relief direct payment of tuition and related services, direct payment for special transportation; and continuation of the dual mandate services provided by CPSE. (Id.) The District made no case for provision of FAPE; inappropriateness of the unilateral placement, nor for the reduction or denial of relief based on the equities.

FINDINGS OF FACT

1. The Student has global delays and has been diagnosed with [REDACTED], seizure disorder and cerebral palsy. (P-Ex. M p. 4 ¶ 16). She has difficulty with ambulation. (P-Ex. N p. 1 ¶ 3).

2. At the start of the 2021-2022 school year, the Student attended a 9:1:2 [REDACTED] Approved Classroom at the Preschool, as recommended by her original CPSE IEP. (P-Ex. N-1 ¶ 4). The Student failed to make appropriate progress in the 9:1:2 class. (P-Ex. M-2 ¶ 11). The CPSE reconvened mid-year and recommended a more intensive dual mandate program including a 6:1:2 [REDACTED] classroom in a center-based preschool; a 1:1 paraprofessional for support and monitoring; and the following related services to be provided within the school day: speech-language therapy ("SLT"), individual service, three 30-minute sessions per week; occupational therapy ("OT"), individual service, three 30-minute sessions per week; and physical therapy ("PT"), individual service, three 30-minute sessions per week. (D-Ex. 1 p. 17). The IEP also recommended additional "dual recommendations" consisting of additional related services to be provided outside of the school day. (Id.). These additional related services consisted of SLT, individual service, three 30-minute sessions per week; OT, individual service, three 30-minute sessions per week; and PT, individual service, three 30-minute sessions per week. (D-Ex. 1 p. 17; P-Ex. L). ^[5]

3. The District failed to locate and/or provide the recommended 6:1:2 center-based program. (P-Exs. M p. 2 ¶ 12; N p. 3 ¶¶ 9-10). The Parent placed the Student in a 6:1:2 Private Classroom in the Preschool, which is in the same building and program as the Approved Classrooms. (Tr 91-92; P-Ex. M pp. 1-2 ¶ 5).

4. From December 2021 through June 2022 the Student attended one of the Preschool's two 6:1:2 Private Classrooms. (Tr 84-85). The Student was accompanied daily by a 1:1 paraprofessional (Tr 85) and she received her mandated related services. (P-Ex. M p. 3 ¶¶ 17, 30). The Preschool serves students who are globally delayed as well as students who have fewer challenges and may progress later to general education environments. (P-Ex. M p. 2 ¶ 6). The students are grouped by age and then assigned to specific classrooms based upon their functional levels. (Id. ¶ 7). The Private Classroom designed the Student's program to focus on regulation and her engagement with the environment and the people around her. (Id. p. 3 ¶ 19). The Private Classroom provided the Student individualized supports as she participated in a sensory diet for regulation, various adaptive daily living skills, and learning to self-feed. (Id. at p. 4 ¶¶ 18-20). The school worked with the Student to promote her engagement with adults and children. (Id. at p. 5 ¶¶ 21-25). She took part in lessons with her classmates, participated in playtime and engaged in adaptive physical education. (Id. at pp. 5-6 ¶¶ 21, 24–26, 29). The Private Classroom modified activities for the Student so she could take part. (Id. ¶ 23).

5. The Student made progress in regulation, engagement, expressive and receptive language, cognitive skills and focus in the Private Classroom. (P-Exs. M p. 5 ¶¶ 21, 24, 25, 28, 31; M p. 2 ¶ 12; H, I, J, K).

CONCLUSIONS OF LAW

IDEA and FAPE

The IDEA was enacted primarily (1) to ensure that students with disabilities have available to them a free appropriate public education which is designed to meet their individual needs and prepare them for further education, employment, and independent living; and (2) to protect the rights of students with disabilities and the parents of such students. (20 U.S.C. § 1400(d)(1)(A)-(B); see generally, Forest Grove v. T.A., 557 U.S. 230, 239 (2009); Board of Educ. v. Rowley, 458 U.S. 176, 206-207 (1982)). A FAPE consists of special education and related services designed to meet a student's unique needs which are provided in conformity with a written individualized education program. (See 20 U.S.C. § 1401(9)). A FAPE is offered to a student when (a) the board of education complies 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 or the IEP is "reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances." (See Rowley, at 192).

The Supreme Court recently clarified the substantive standard for determining whether a child's IEP offered a FAPE. The Court held that "[t]o 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. ex rel. Student F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 1001 (2017)). The Court emphasized the text of the IDEA itself and stated:

A focus on the particular child is at the core of the IDEA. The instruction offered must be "specially designed" to meet a child's "unique needs" though an "[i]ndividualized education program" §§1401(29), (14) (emphasis added). An IEP is not a form document. It is constructed only after careful consideration of the child's present level of achievement, disability and potential for growth. (Endrew F. at 999).

The Court continued "[A child's] IEP need not aim for grade-level advancement. But his educational program must be appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives." (Endrew F. at 1000).

An appropriate IEP must include: (a) a statement of the child's present level of academic achievement and functional performance and how the child's disability affects the child's involvement and progress in the general education curriculum; (b) a statement of measurable annual academic and functional goals; (c) how a child's progress towards those goals will be measured; (d) a statement of the special education and related services to be provided to the child; (e) an explanation of the extent to which the child will participate with nondisabled students in school; and (f) the projected date for the start of services and the duration. (34 CFR § 300.320(a); 8 NYCRR 200.4(d)(2)). An IEP must be developed collaboratively, by a team that includes the child's parents, specific teachers, a school district representative and someone who can interpret evaluations. (34 CFR § 300.321, Educ. Law §4402(a)). The "core of the statute . . . is the cooperative process that [IDEA] establishes between parents and schools." (Schaffer v. Weast, 546 U.S. 49, 53 (2005)). The Second Circuit has stated that a district "must produce, in writing, an [IEP] that 'describes the specially designed instruction and services that will enable the child to meet' stated educational objectives and is reasonably calculated to give educational benefits to the child." (M.W. ex rel S.W. v. NYC Dept. of Educ., 775 F.3d 131, 135 (2d Cir. 2013) (Quoting R.E. v. NYC Dept. of Ed., 694 F.3d 167 (2d Cir. 2012)).

"The importance Congress attached to the procedural safeguards [in IDEA] cannot be gainsaid." (See R.E. at 189-190). A procedural violation of the IDEA entitles a parent to relief only if it: "(I) impeded the child's right to a [FAPE]; (II) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a [FAPE] to the parents' child; or (III) caused a deprivation of educational benefits." (20 U.S.C. § 1415(f)(3)(E)(ii); see P. v. West Hartford Bd of Educ., 885 F.3d 735, 748-749 (2d Cir. 2018); citing A.M. v. N.Y. City Dep't of Educ., 845 F.3d 523, 535 (2d Cir. 2017). "Multiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not." (See R.E., 694 F.3d at 190. It is important to note that school districts are not required to "maximize" the potential of students with disabilities. (Rowley, 458 U.S. at 199; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003)). 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)). In addition, a child with a disability is entitled to a FAPE in the least restrictive environment ("LRE"). (20 U.S.C. §1401(9) and 34 CFR §300.17. See Mr. and Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111, 114 (2d Cir. 2008); Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119 (2d Cir. 1998)). Children with disabilities must be educated with children who do not have disabilities to the maximum appropriate extent. The LRE mandate requires the determination of "whether education in the regular classroom, with the use of supplemental aids and services, can be achieved satisfactorily for a given child, and, if not, then whether the school has mainstreamed the child to the maximum extent possible." (Mr. and Mrs. P. at 114). Burden of Proof The District bears the burden of proof during an impartial hearing, except in a tuition reimbursement case, where the Petitioner bears the burden of proof regarding the appropriateness of a unilateral placement. (Educ. Law §4404(c)(1)). The burden of proof in this matter shall be met upon a fair preponderance of the evidence, which requires that the trier of fact find that the existence of a fact is more probable than its nonexistence. If the evidence is evenly balanced, the party with the burden of persuasion must lose. Tuition Reimbursement In Burlington School Comm. v. Dept. of Education, 471 U.S. 359 (1985), the Court determined that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA. In cases where the relief sought is tuition reimbursement, the applicable three-prong analysis is contained in Burlington and its progeny. (See Florence County School Dist. Four v. Carter, 510 U.S. 7 (1993)). When applying a Burlington/Carter analysis it is necessary to determine if (1) the school district failed to offer and/or provide a FAPE to the Student; (2) the services selected by the Parents were appropriate; and (3) the equitable considerations support the parents' claim.

The first part of the Burlington/Carter analysis considers whether the District has demonstrated that it provided a FAPE. The second prong of Burlington/Carter shifts the burden of proof and persuasion to the Parent, who must demonstrate that their unilateral placement of the Student is appropriate. (Educ. Law. 4404(1)(c)). The private placement selected by the parent does not have to be an approved special education school, (See Carter, 510 US 7 (1993)), nor does it have to meet the strict requirements of a special education placement by a public school district. However, a private placement must be tailored to meet the student's individual needs. "A unilateral private 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 F3d 105 (2d Cir. 2007); Frank G. v. Board of Education, 459 F3d 356, 365 (2d Cir. 2006) (quoting Rowley, 458 U.S. at 188-89). The final part of the Burlington/Carter analysis determines whether equitable considerations support the award of tuition reimbursement. The IDEA permits a court to limit or deny reimbursement if the parents fail to provide notice of the student's private school enrollment in a timely manner, fail to make the student available for an evaluation, or act unreasonably in the course of the IEP's development. (See 34 CFR 300.148(d)); E.M. v. New York City Dep't of Educ. 758 F.3d 442, 461 (2d Cir. 2014). In determining whether equitable considerations support a request for reimbursement, the courts will consider whether the parents have cooperated with the school district throughout the process to ensure that their child receives a FAPE. Bettinger v. New York City Bd. Of Educ., 2007 WL 4208560 (S.D.N.Y. November 20, 2007); Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656 (S.D.N.Y. 2005); see also S.W. v. New York City Dept of Educ., 646 F. Supp. 2d 346, 361-63 (S.D.N.Y. 2009). Excessive tuition or frequency of services may underpin a reduction in public reimbursement or payment for unilaterally obtained special education. (E.M. at 461). Direct Payment of Tuition The Parent has requested a remedy of retroactive direct payment in this matter. The Second Circuit has held that an IHO, SRO or court may order a school district to directly pay retroactive tuition when the parent has signed a contract and is legally obligated to pay the private tuition but is unable to do so due to lack of financial resources. (E.M. v. New York City Dep't of Educ., 758 F.3d 442, 453 (2d Cir. 2014); See also Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 406 (S.D.N.Y. 2011)). E.M. v. Dep't Educ. states "Indeed, where the equities call for it, direct payment fits comfortably within the Burlington-Carter framework." (758 F. Supp. 2d at 453). These direct funding cases are often referred to as "Connors" cases after Connors v. Mills, 34 F. Supp. 2d 795 (N.D.N.Y.).

ANALYSIS

The threshold issue in this case is whether or not the District provided or offered a FAPE for this student from December 2021 through June 2022. The District functionally conceded the matter of FAPE, as it presented no case at hearing. This IHO notes that there is no school location letter in the record. Both the Parent and Principal testified via affidavit that the District neither identified nor offered a school or program that could provide the Student the special education program recommended by the November 29, 2021 IEP. (P-Ex. M p. 3 ¶ 12; N p. 2 ¶ 8). Had the District elected to present a case, its failure to provide a placement clearly would have precluded a finding for the District on the issue of FAPE. The District has failed to carry its burden of proof and persuasion that it provided a FAPE to the Student for the approximately seven months at issue during the 2021-2022 school year. The Parent has satisfied Prong I of the Burlington/Carter analysis.

The Parent has demonstrated that the Private Classroom in the Preschool was appropriate. The District had initially placed the Student for the 2021-2022 school year in one of the 9:1:2 Approved Classrooms. (P-Ex. N-1 ¶ 4). The Private Classrooms and Approved Classrooms are part of the same program at the Preschool, in fact they share the same program description. [emphasis added] (P-Ex. G). The 6:1:2 classrooms have a higher teacher to student ratio and offer more intensive support. (P-Ex. M p. 4 ¶ 17). The 6:1:2 Private Classroom provided the Student with individualized supports, activities and accommodations that have enabled her to make progress. (See Findings ¶¶ 4-5; P-Exs. I, N, M). The Private Classroom may not meet the requirements for NYS approval; however, the Private Classroom is certainly appropriate under the Burlington/Carter standard. The Parent has satisfied Prong II.

The equitable considerations support the Parent. She attended the November 29, 2021 IEP meeting and submitted a ten-day notice. (P-Ex. N p. 1 ¶ 6, p. 2 ¶ 9). The Parent noted that the Student's after school related services are provided directly by the District and she stated that she would have similarly considered a school placement offered by the District if it had been appropriate. (Id. p. 2 ¶ 11). The District has not made assertions nor presented any evidence that the Parent acted in manner that would undercut the equitable considerations in her favor. The Parent prevails on Prong III of Burlington/Carter.

The Parent testified via affidavit that she and her husband are liable for tuition payments under the enrollment contract with the Preschool. (P-Exs. C, N p. 2 ¶ 14). The Parents also signed addenda for the cost of special transportation and for a 1:1 paraprofessional. (P-Ex. C pp. 6-7). The Parent submitted two pages from her 2021 tax return to demonstrate she does not have means to pay up front for the tuition, transportation, and other costs of the Private Classroom at the Preschool. (P-Ex. F). Direct payment of tuition and transportation is permissible.

ORDER

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

1. The District failed to provide a FAPE to this Student from December 2021 through June 2022;

2. Within 30 days the District is directed to pay a total of $87,500.00 to the Preschool for the outstanding tuition and paraprofessional costs for the Student's enrollment from December 13, 2021 through June 24, 2022, upon receipt of a updated affidavit of payment and proof of Student attendance; and

3. Within 30 days the District is directed to pay a total of $12,400.00 to the Preschool for round trip special education transportation provided for the Student from December 13, 2021 through June 24, 2022, upon presentation of proper invoices and proof of delivery of transportation services to the Student.

SO ORDERED.

DATED: June 7, 2023

Rachel Gibbons

Impartial Hearing Officer

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.

APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

A. Due process complaint 5/22/22 2 pages

B. Parent letter 12/13/21 2 pages

C. Contract 21-22 7 pages

D. Payment affidavit 8/22/22 1 page

E. Schedule 21-22 1 page

F. Federal 1040 form 2021 2 pages

G. Program description N/A 2 pages

H. School progress report 6/01/22 4 pages

I. Occupational therapy report 6/09/22 4 pages

J. Physical therapy report 6/19/22 3 pages

K. Speech therapy report 6/08/22 5 pages

L. CPSE IEP summary 11/29/21 2 pages

M. School testimony affidavit 5/17/23 7 pages

N. Parent testimony affidavit 5/18/23 2 pages

DOE'S EXHIBITS

1. Individualized Education Program 7/31/21 28 pages DOE

2. IEP Summary Page 7/30/21 2 pages DOE

3. Evaluations June 2021 14-23 39 pages DOE

4. CPSE Correspondence 7/30/21 1 page DOE

Footnotes

[1] Personally identifiable information is attached as Appendix A, "Redaction Identification Page," to this decision and must be removed prior to public distribution.

[2] Exhibits shall be referred to as follows: "P" for Parents' Exhibit; "P-Pend" for Parent's exhibits from the pendency hearing; "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. Citation to the findings of fact contained infra will be referred to as "Findings" followed by the paragraph number.

[3] Status conferences were held on 8/15/2022; 9/12/2022; 10/12/2022; 11/09/2022; 12/06/22; 1/03/23; 2/01/23; 3/01/23; 3/27/23; 4/27/23 and 5/01/23. (See Tr 6-42). This IHO notes that the District failed to appear at a number of conferences; however, counsel for Parent reported at the conferences that the settlement process was continuing, albeit interrupted by an October 2022 change in District counsel and/or representative. (Id.) Based upon the findings of fact, infra, it is puzzling that this matter did not settle prior to hearing.

[4] A more detailed list of the admitted exhibits is attached as Appendix B, "Documentation Entered into the Record," to this decision.

[5] At first glance, the November 2021 IEP appears to be a document developed pursuant to the July 30, 2021 IEP meeting. (D-Ex. 1 p. 1). Further examination reveals the program is the result of a reconvene meeting on November 29, 2021. (Id.)