New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 573325 - NYC: 226584

FINDINGS OF FACT AND DECISION

Case Number: REDACTED

Student’s Name: (“Student”)

Date of Birth: REDACTED

District: REDACTED

Hearing Requested by: REDACTED (“Parent”)

Dates of Hearing: 08/02/22

09/29/22

11/07/22

12/08/22

01/10/23

02/14/23

02/16/23

03/17/23

Record Close: March 17, 2023

Hearing Officer: ANNETTE HICKS GILL

NAMES AND TITLES OF PERSONS WHO APPEARED AUGUST 2, 2022 *

For the Student:

REDACTED, J.D., Advocate

For the Department of Education:

REDACTED, ESQ., Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED NOVEMBER 7, 2022 *

For the Student:

REDACTED, ESQ., Attorney

REDACTED, Supervisor, REDACTED

For the Department of Education:

REDACTED, ESQ., Attorney

REDACTED, CPSE Administrator, REDACTED

NAMES AND TITLES OF PERSONS WHO APPEARED DECEMBER 8, 2022 *

For the Student:

REDACTED, ESQ., Attorney

For the Department of Education:

REDACTED, ESQ., Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 10, 2023 *

For the Student:

REDACTED, ESQ., Attorney

For the Department of Education:

REDACTED, ESQ., Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED FEBRUARY 14, 2023 *

For the Student:

REDACTED, ESQ., Attorney

For the Department of Education:

REDACTED, ESQ., Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED FEBRARY 16, 2023 *

For the Student:

REDACTED, ESQ., Attorney

REDACTED, Parent

For the Department of Education:

REDACTED, ESQ., Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 17, 2023 *

For the Student:

REDACTED, ESQ., Attorney

For the Department of Education:

NONE

* All appearance were by telephone.

This case was brought before me 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).

REDACTED (“Student”) is a REDACTED -year-old student whose parent REDACTED (“Parent”) brought the instant hearing, arguing that the DOE had failed to provide the Student with a free appropriate public education (FAPE) for the extended 12-month 2021-2022 school year. (P exhibit A-3).

The hearing convened on August 8, 2022. On that date, as well as November 29, 2022, applications were made, and the substantive hearing commenced on November 7, 2022. Although the Parent’s claim seeks relief for the 2021-2022 extended school year (P exhibit A), on November 7, 2022, the Parent limited the claim to the summer of the 2020-2021 school year. At that time opening statements were made by both parties and District submitted exhibits 1-7 and Parent’s submitted exhibits A-I as listed below. After the opening statements, the District offered one witness and then rested.

On November 7, 2022, the Parent representative began her case in chief by calling REDACTED, a supervisor at the unilateral placement of the child, and then made a request to submit additional evidence or in the alternative that a request to withdraw the matter without prejudice be granted. The Parent submitted a brief requesting that additional documents be allowed into evidence and the District submitted opposition. A briefing schedule was set and oral arguments on the issues briefed were heard on December 8, 2022, and January 10, 2023. This hearing officer did not allow the case to be withdrawn, however, allowed the original documents submitted by Parent to be admitted.

On February 16, 2022, the hearing in chief was concluded, and on March 17, 2023, a post hearing appearance was made to have the documents officially submitted into evidence. Extensions were granted in accordance with regulations and the record closed upon receipt of the remaining evidence.

DISTRICT AND PARENT POSITIONS

A Request for Due Process Proceeding, dated May 23, 2022, included multiple claims that the DOE had failed to provide the Student an appropriate educational program and placement for the extended 12-month 2021-2022 school year. (P exhibit A). At hearing Parent limited the issue to the summer months of the 2021-2022 school year.

As noted, the Parent made a request to withdraw the matter without prejudice after the substantive hearing had commenced, or in the alternative sought to admit additional evidence after Parent’s first witness, REDACTED, Supervisor at REDACTED noted that Parent’s exhibit G was not complete. This hearing officer ruled that the case move forward and deemed that the original documents offered into evidence, Parent’s exhibits A-I be admitted.

The District representative argued that it provided the Student with a FAPE for the entire 2021-2022 school year; the unilateral placement was not appropriate for the student; and that the Parent did not operate in good faith. In turn, the Parent maintained that the District did not offer a placement for her child for the summer of the 2021-2022 school year and as such she was denied a FAPE for the summer. Parent further claims that the unilateral placement at the REDACTED Program was appropriate, that equities way in the Student’s favor, and as such, the DOE must directly fund her tuition for that school. (P exhibit A-4).

FINDINGS OF FACT

Before the substantive hearing commenced, the Parent limited the issue to whether the District provided a FAPE to the Student for the summer of the 2021-2022 school year. In support of her claim, the parent offered a letter sent to the District, requesting an IEP and placement for the “upcoming extended 12 months 2021-2022 school year”. (P exhibit H-2). Parent also offered an IEP dated July 27, 2021 (D exhibit 1; P exhibit B).

The District’s witness REDACTED, CSE Administrator stated that that she handled most aspects of the Student’s case. She added that the Student required evaluations prior to the IEP meeting. (Tr. At 57). Permission was granted by the Parent, and the child was evaluated. (Tr. At 57; D exhibit 2). At the IEP meeting, the Parent, a DOE Special Education Teacher, a DOE general education teacher, a CPSE Administrator, and a Special Education Service Coordinator were present. (D exhibit 1). As a result of the meeting, the CSE recommended the Student attend an 8:1:2 ratio in a District 75 school for the 12-month school year and numerous related services – Occupational Therapy 2x30 (individual); Physical Therapy 2x30 (individual); and Speech-Language Therapy 3x30 (individual) (D exhibit 1). The parent did not raise specific objections to the recommendations, however, did note concerns about her child’s speech development and stated that she needs one on one attention and that she gets easily frustrated. She also raised concerns about her fine and gross motor development. (D exhibit 1; P exhibit B).

The IEP lists the projected beginning/service date as 9/1/21. (Tr. at 56; D exhibit 1-15). REDACTED also explained that the projected start date was September 1, 2021, and the summer services would start the following summer. (Tr. at 56). She further testified the DOE had 60 school days from the authorization by the parent to implement the services which would have required the DOE to implement the services in September 2021, after the summer of 2021, the period of which is the subject of this claim. (Ibid).

After the IEP meeting, REDACTED testified that she and other DOE employees attempted to secure a placement at REDACTED as well as one other. She sent various emails to facilitate the placement, including to the Parent indicating that the REDACTED would accept REDACTED – without a tour – for the upcoming school year. The Parent responded in writing that she was interested in REDACTED and that she would call REDACTED (D exhibit 6). The Parent denied that that message was from her claiming it was sent from her husband’s email and that she did not have access to it. However, she later confirmed that she and her husband make education decisions together (Tr. at 226) and that her husband responded to an email addressed to her. (Tr. at 225-26). Parent did confirm that an email sent to the DOE on August 19, 2021, was sent from her family indicating that they still wanted a placement at REDACTED for REDACTED for the 2021-2022 school year. However, REDACTED a never appeared at REDACTED for the start of the school year, despite the parent having signed consent for her to do so and then subsequently never indicating to the DOE that she did not intend to send REDACTED to REDACTED. (Tr. 226-228).

CONCLUSIONS OF LAW

The scope of the impartial hearing is limited to the issues raised in the due process complaint (“DPC”). 8 NYCRR 200.5 (j)(1)(ii); 20 U.S.C. 1415(F)(3)(B); SRO decision 11-35, see also SRO decisions 10-105, 11-010, 12-044. B.P. v. New York City Dep’t of Educ., 841 F. Supp. 2d 605, 611 (E.D.N.Y. 2012); R.C. ex rel. M.C. v. Byram Hills School Dist., No. 11 Civ. 3938, 2012 WL 5862736, p. 11 (S.D.N.Y. Nov. 2012). Any issues or allegations not contained within the four corners of this complaint are not to be considered. As such, the issues regarding a provision of FAPE are limited to the specific issues raised in the parent’s due process complaint pertaining to the 2021-2022 school year. Similarly, any claims set forth within the DPC that was not addressed at hearing should not be considered as they are deemed abandoned. Application of the Dep’t of Educ., Appeal No. 09-037 at 14.

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 stated that the DOE had provided the child with a FAPE in the 2020-2021 school year and provided documentary evidence and witness testimony. The Parent made a request for evaluations and an IEP for the “upcoming extended 12-months 2021-2022 school year. In response to said request, evaluations were completed prior to the creation of the IEP dated July 27, 2021. The IEP meeting was attended by appropriate persons and there was no objection raised by the Parent to the composition of the team, nor did the parent raise any objection to the recommendation at that time.

The evidence is clear that the DOE provided an IEP reasonably calculated to enable the Student to make appropriate progress for the 2021-2022 extended school year, intended to begin on September 1, 2021, and that the DOE complied with all procedural mandates.

For the reasons noted, I find the Parent failed to establish that the District did not provide a FAPE for the 2021-2022 school year.

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. To meet that burden, the parents must show that the unilateral placement 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); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 98-76; Application of a Child with a Disability, Appeal No. 94-29. 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).

There was no testimony or documentary evidence about how REDACTED differentiated REDACTED’s instruction, what sort of progress she made, or how – if at all – the progress she made was tied to the program she received at REDACTED. There was no credible evidence about how the classes she was enrolled in addressed her specific needs, such as her overall low intellectual functioning, difficulty following verbal directions, overall environmental awareness. (Tr. at 81-82)

The supervisor REDACTED testified about REDACTED’s struggles – social emotionally (Tr. at 82-83), and academically (Tr. 83-84). However, when asked by Parent’s counsel about REDACTED progress behaviorally, socially, and emotionally, REDACTED stated that “I cannot say she was always aware of her environment” and “she was able to respond to instructions and adult intervention” and that “Overall . . . there was a decrease of those challenging behaviors” REDACTED testified that she learned to label more items in her environment. However, none of these alleged indicators of progress was tied to the efforts or instruction offered by REDACTED. Furthermore, Parent’s exhibit G, labeled Assessments Plans and Reports cannot be deemed reliable because as REDACTED testified, it was missing parts.

For all the above, I find that the parents have failed to demonstrate the appropriateness of the program at REDACTED.

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).

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).

The Parent did not establish that the unilateral placement of her daughter was justified. The child was evaluated prior to the IEP meeting which was attended by a full team including the Parent in compliance to the Parent’s request. The 10-day Notice sent by the Parent merely states that the placement was not proper or adequate. The parent did not describe how the recommendations made in the IEP were inappropriate. Thus there is little to no support to weigh in favor of the Parent in this case.

Direct payment.

The parent has also requested direct funding to the school. In Connors vs. Mills, 34 F.Supp.2d 795 (NDNY, 1998), the Court stated that once the Burlington/Carter prerequisites are met, the issue is not the fact of payment, but the timing of that payment, and stated that when “…a parent shows that his or her financial circumstances eliminate the opportunity for unilateral placement in the non-approved school, the public school must pay the cost of private placement immediately.” An impartial hearing officer can order prospective tuition funding, where in circumstances to hold otherwise would be to deny a child the right to access to services under the IDEA. Sabatini v. Corning-Painted Post Area School District, 78 F.Supp. 2d 138 (USDC, WDNY).

The Parent’s case has not passed the prior tests that would warrant a further step to determine whether funding should be granted. The equities do not favor the Parent in this case.

ORDER

1. The Parent failed to establish the claim that the child suffered a denial of FAPE.
2. On or about July 27, 2021, the District provided an IEP reasonably calculated to enable the Student to make appropriate progress in light of the Student’s circumstances.
3. Parent’s claim and requested relief is hereby DENIED.

IT IS SO ORDERED.

Dated: March 23, 2023

_Annette Hicks Gill____________

ANNETTE HICKS GILL

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 proceedings 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.

EXHIBITS

DEPARTMENT OF EDUCATION EXHIBITS *

Exhibit	Description	Date	No. of Pages
1	IEP	7/27/21	18
2	OMNI Packet	7/1/21	72
3	Child Outcomes Summary	7/27/21	16
4	REDACTED Consent Form	7/27/21	1
5	Email Updates	7/30/21	2
6	Parent Email Requesting REDACTED	8/18/21	1
7	Email re: Touring Schools	8/20/21	2

PARENT EXHIBITS

Exhibit	Description	Date	No. of Pages
A	Request for Due Process Proceeding and Notice of Appearance	05/23/2022	7
B	IEP	07/27/2021	17
C	Student Contract, Program Description, and Curriculum	06/21/2021	19
D	Affirmations regarding Tuition Breakdown and Payments	09/22/2022	2
E	Curriculum Schedule	Summer 2021	2
F	Student Attendance	Summer 2021	1
G	Assessments, Plans, and Reports	Various	5
H	Request for IEP and Placement	06/17/2021	2
I	Ten Day Notice from Parent to DOE	08/16/2021	2