New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION redacted

Case Number: 226662

Student’s Name: “REDACTED”, (“Student”)

Date of Birth: “REDACTED”

District: “REDACTED”

Hearing Requested by: “REDACTED”

Date of Hearing: July 22, 2022; August 16, 2022; September 30, 2022

Record Close: September 28, 2023

Hearing Officer: ANNETTE HICKS GILL, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED JULY 22, 2022 *

For the Student:

“REDACTED”, ESQ., Attorney

For the Department of Education:

“REDACTED”, ESQ., Attorney

“REDACTED”, ESQ., Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED AUGUST 16, 2022 *

For the Student:

“REDACTED”, ESQ., Attorney

For the Department of Education:

NONE

NAMES AND TITLES OF PERSONS WHO APPEARED SEPTEMBER 30, 2022 *

For the Student:

“REDACTED”, ESQ., Attorney

“REDACTED”, Parent

“REDACTED”, School Psychologist, REDACTED Prep

For the Department of Education:

“REDACTED”, ESQ., District Representative

* All appearances were by video conference.

This case was brought before the undersigned Impartial Hearing Officer 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 parents “REDACTED” and “REDACTED” (Parent) brought the instant action, arguing that the DOE had failed to provide their child with a free appropriate public education (FAPE) for the 2021-2022 school year.

The hearing commenced on July 22, 2022, and continued August 16, 2022, and September 30, 2022. Extensions were granted in accordance with regulations and the record closed upon receipt of the remaining evidence.

DISTRICT AND PARENT POSITIONS

The Due Process Complaint (DPC) dated May 26, 2022, included multiple claims that the DOE had failed to provide the Student an appropriate educational program and placement for the 2021-2022 school year, requesting reimbursement for unilateral placement at REDACTED Prep (School) because of the DOE’s alleged failure to locate a program, public or private, that could implement the student’s Individualized Educational Program (IEP). Furthermore, the IEP itself was not sufficient because the CSE was invalidly composed and failed to comply with the proper procedures in documentation and evaluative data prior to making its recommendations. Likewise, the IEP fails to include sufficient goals and the goals indicated could not be met in the DOE proposed program. (P exhibit A-1). The District did not present a Prong I case and argues that the Parent failed to demonstrate that the unilateral placement was proper, and that the equities do not balance in the Parent’s favor. (Transcript p. 15).

FINDINGS OF FACT

On January 11, 2021, the CPSE developed an IEP for the Student which indicated that the student should be receive an ICT class with SETSS at The Community School. (D exhibit. (IHO exhibit 1). According to the DPC, the ICT classroom is too large and fails to offer a sufficient level of teacher support to meet the needs of the Student. Also, the Parent finds the SETSS to be inappropriate because it does not address the demands of the ICT classroom. (P exhibit A-1; D exhibit 1). Following the meeting, the Parent expressed her concern about the DOE’s recommendation, however, the IEP failed to note those concerns. (P exhibit P-2). When the Parent received a public school placement, she immediately contacted the school, but no one got back to her. (P exhibit P-2). The Parent also filed a 10-day notice informing the DOE of that disagreement and her intention to place her son at REDACTED and seek reimbursement. (P exhibit B).

The December 7, 2021 IEP meeting gave the same recommendations, and as such, remained inappropriate. (Transcript p. 16-17; D exhibit 2). The Parent also did not receive a new school location letter following the meeting for the 2021-2022 school year. (P exhibit P 3).

The Student attended the “REDACTED” School in the “REDACTED” program which the Parent found to be a structured and nurturing program for students with disabilities that provides special education supports as well as integration with mainstream peers where appropriate. He made academic and social-emotional progress at that placement as the program is specifically designed to accommodate his needs. (P exhibits P 4-5).

The “REDACTED” school psychologist testified through affidavit that as a result of the Student’s significant learning difficulties, he needed small classes with a high level of individualized support. The school worked with the Student on his areas of weakness in terms of functioning skills and writing. (P exhibit O 8). She further testified that given the breadth and depth of the interventions and modifications the Student received; he was able to improve his ability to complete more advanced written assignments and keep up with work in more demanding classes. He gained confidence and became a more independent learner. (P exhibit O 12).

In closing and opening statements, the parent gave the DOE rep simply stated that the parent did not show that “REDACTED” was appropriate, and that the balances in equity did not favor the Parent. There was no documentary or testimonial evidence to the contrary.

CONCLUSIONS OF LAW

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 2022-2023, neither did she provide any documentary evidence or witness testimony. In fact, the District outrightly stated that they were not presenting a Prong I case.

For the reasons noted, I find the district failed to provide a FAPE for the Student.

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 the program at “REDACTED”. It was established through testimony and other evidence that the school provides the types of services and instruction that the Student is in need of and it is found that he made significant progress at this placement by the Parent and the school Director.

For all the above, I find that the Parent has demonstrated the appropriateness of the program at “REDACTED” 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 Parent’s cooperated with the DOE and gave proper notice of the intent to unilaterally place the Student at “REDACTED” because of its failure to provide the Student with a FAPE.

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 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 placement was not to meet the student’s needs as demonstrated by the testimony of the school Psychologist and the Parent.

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.

I find that the Parent demonstrated through documentary and testimonial evidence that the unilateral placement was appropriate for the student for the 2021-2022 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:

• 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).
• 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).
• Whether the parents’ action was unreasonable. 20 U.S.C. §1412(a)(10)(C)(iii)(III), 34 C.F.R. § 300.148(d)(3).
• Whether the cost of the private placement is unreasonable. Florence County Sch. Dist. Four v. Carter, 510 U.S. at 16.
• Whether there was a lack of parental cooperation with the school district. C.G. v. Five Town Community Sch. Dist., 513 F.3d 279 (1^st Cir. 2008)

In this case, the Parent gave timely notice, and the District did not properly evaluate 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.

ORDER

The DOE shall directly refund the student’s tuition at the “REDACTED “school for the 2021-2022 school year.

IT IS SO ORDERED.

Dated: October 10, 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

Exh.	Description	Date	# of Pages
1	IEP	01/11/2021	26 pages
2	IEP	12/07/2021	18 pages

PARENT EXHIBITS

Exh.	Description	Date	# of Pages
A	Due Process complaint	05/26/2022	6 pages
B	10-Day Notice Letter	08/26/2021	4 pages
C	Follow-Up Notice Letter	10/22/2021	3 pages
D	Neuropsychological Evaluation	01-16-2020	18 pages
E	21-22 Class Schedule	Undated	1 page
F	Trimester 1 Report Card	Undated	5 pages
G	Trimester 2 Report Card	Undated	5 pages
H	Trimester 3 Report Card	Undated	5 page
I	Final Counseling Report	06/20/2022	2 pages
J	21-22 Final Attendance	6/17/2022	1 page
K	“REDACTED” Program Description	Undated	2 pages
L	21-22 “REDACTED” Prep Remote Learning Plan	Undated	2 pages
M	Enrollment Contract	01/28/2021	3 pages
N	Payment Affidavit	01/21/2022	4 pages
O	“REDACTED” Testimony Affidavit	09/28/2022	12 pages
P	“REDACTED” Testimony Affidavit	09/28/2022	6 pages