NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
NAMES AND TITLES OF PERSONS WHO APPEARED
July 15, 2022
For the Student:
[REDACTED] Parent Attorney
For the Department of Education:
[REDACTED] DOE District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
August 10, 2022
For the Student:
[REDACTED] Parent Attorney
For the Department of Education:
[REDACTED] DOE District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
September 7, 2022
For the Student:
[REDACTED] Parent Attorney
For the Department of Education:
[REDACTED] DOE Consultant Representative
[REDACTED] DOE Consultant Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
October 12, 2022
For the Student:
[REDACTED] Parent Attorney
For the Department of Education:
[REDACTED] DOE Consultant Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
November 10, 2022
For the Student:
[REDACTED] Parent Attorney
For the Department of Education:
[REDACTED] DOE Consultant Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
December 13, 2022
For the Student:
[REDACTED] Parent Attorney
For the Department of Education:
[REDACTED] DOE Consultant Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
January 11, 2023
For the Student:
[REDACTED] Parent Attorney
For the Department of Education:
[REDACTED] DOE Consultant Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
February 14, 2023
For the Student:
[REDACTED] Parent Attorney
For the Department of Education:
[REDACTED] DOE Consultant Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
March 14, 2023
For the Student:
[REDACTED] Parent Attorney
For the Department of Education:
[REDACTED] DOE Consultant Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
April 12, 2023
For the Student:
[REDACTED] Parent Attorney/Paralegal
For the Department of Education:
[REDACTED] DOE Consultant Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
May 10, 2023
For the Student:
[REDACTED] Parent Attorney
For the Department of Education:
[REDACTED] DOE Consultant Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
June 1, 2023
For the Student:
[REDACTED] Parent Attorney
For the Department of Education:
[REDACTED] DOE Consultant Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
July 10, 2023
For the Student:
[REDACTED] Parent Attorney/Paralegal
For the Department of Education:
[REDACTED] DOE Consultant Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
August 31, 2023
For the Student:
[REDACTED] Parent Attorney
[REDACTED] Parent/Mother
[REDACTED] Head of School [REDACTED]
For the Department of Education:
[REDACTED] DOE Consultant Representative
INTRODUCTION
On June 3, 2022, New York City Department of Education (DOE) appointed me to act as the impartial hearing officer (IHO) in a case brought under the Federal Individuals with Disabilities Education Act (IDEA) [20 USC §1415(f)(3)] ("IDEA") by the parent (Parent) of [REDACTED] ([REDACTED]) for the school year 2021/22. The Parent requested the hearing by filing an impartial hearing request with DOE on or June 2, 2022. The Due Process Complaint (DPC) is carried under New York City ("NYC") Case No: 226745. The impartial hearing was held over a series of dates, to complete the record on August 31, 2023. The timelines have also been extended to allow the parties opportunity to fully prepare, secure witnesses and obtain transcripts. The record officially closed on October 15, 2023. A list of persons who appeared at the hearing and the documents entered into evidence is annexed hereto.
BACKGROUND AND POSITION OF THE PARTIES
[REDACTED] is a student known to the DOE for several years due to his learning needs. Parent contends [REDACTED] has required and has received special education support and programming in a highly specialized environment as his complex profile necessitated continued placement in a residential program (Exhibits A and C). The CSE convened on or about April 19, 2021 and recommended a 12:1:1 program in a D-75 school setting with related services for the 2021/22 school year (Exhibit A). Thereafter, Parent received a placement notice and arranged a visit for July 8, 2021. Parent presents that during the visit, the administrator mentioned that many of the students have significant mental health issues, including emotional outbursts and engaging in self-harm. Parents had significant concerns about the placement for [REDACTED], particularly they were left with the impression that the school seemed to run far more like a psychiatric facility than a school and that exposure to such profound mental health issues and self-harming behaviors would be extremely inappropriate for [REDACTED] as parent describes him as a mild-mannered kid without behavioral issues (Exhibits A and Z). On or about August 24, 2021, Parent provided notice that [REDACTED] would be placed at [REDACTED] ([REDACTED]) if no appropriate program and placement was created and offered (Exhibits A and B). The Parent alleged: (1). the DOE recommended program was not appropriate and not calculated to confer educational benefit; (2). the CSE failed to rely or obtain necessary evaluative materials for the development of the IEP; and (3). the recommended placement was not appropriate and would not provide him with appropriate support nor with a suitable and functional peer group for academic and social and emotional purposes. The Parent maintains that placement at [REDACTED] was appropriate for [REDACTED] and was reasonably calculated to confer educational benefit and that equitable considerations weigh in their favor. Parents proceeded to place [REDACTED] at [REDACTED] and via the DPC seek reimbursement for the tuition costs at [REDACTED] for the entirety of the 2021/22 school year (Exhibits A and Z, T @ 81).
In an effort to support their position, the parents presented twenty-seven (27) pieces of documentary evidence (Exhibits A–AA), which included the direct testimony of two witnesses: [REDACTED], [REDACTED]'s mother (Exhibit Z) and [REDACTED], Head of School at [REDACTED] (Exhibit AA).
At the hearing, the DOE opted not to defend its Prong I burden (T @ 58, 73, 106), opted not to submit any documentary evidence or present any witnesses, and merely opting to cross-examine Parent witnesses (T @ 74). The DOE contended the unilateral placement inappropriate and requested a denial of the tuition as requested by Parent or in the alternative requested the residential portion of the tuition be denied as the DOE offered the notion that Parent unilaterally opted to place [REDACTED] in a residential program which he did not require (T @ 107).
FINDINGS OF FACT AND DECISION
The Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) was enacted with the primary purpose to ensure that students with disabilities have available to them a free and appropriate public education (FAPE) (20 U.S.C. § 1400[d][1][A]; see Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]; Bd. of Educ. v. Rowley, 458 S. Ct. 176, 179-81, 200-01 [1982]; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [2d Cir. 2006]). It is clear that the legislative intent of 20 US Code Section 1412 of the IDEA is to provide a FAPE to all children with disabilities so that these individuals may ultimately lead productive independent lives as adults, to the maximum extent possible (20 U.S.C. Sx 1400[d][1][A]; see Mrs. W v. Tirozzi, 832 F.2d 748 [2nd Cir. 1987]. A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.17; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.22). An IEP is designed as a "written statement" that addresses the educational needs of a child with a disability (20 U.S.C. § 1401[14]; 34 C.F.R. § 300.22; 8 NYCRR 200.1[y]). At the beginning of each school year, a school district is required to have an IEP in effect "for each child with a disability in its jurisdiction" (20 U.S.C. § 1414[d][2]; 34 C.F.R. § 300.323[a]; see also Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 194 [2d Cir. 2005] (finding the district fulfilled its legal obligations by providing the IEP before the first day of school). The student's recommended program must also be provided in the least restrictive environment (LRE) (34 C.F.R. § 300.114[a]; 8 NYCRR 200.6[A][1]). A FAPE is offered to a student when the board of education (a) complied 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 (Bd. of Educ. v. Rowley, 458 U.S. at 176, 206, 207 [1982]). The IDEA directs that, in general, a decision by an impartial hearing officer or state review officer must be made on substantive grounds based on a determination of whether or not the child received a FAPE (20 U.S.C. § 1415[f][3][E][i]). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a FAPE to the child, or (c) caused a deprivation of educational benefits to the child (20 U.S.C. § 1415[f][3][E][ii]; see 8 NYCRR 2005[j][4][ii]). The IDEA mandates that a student with a disability be provided with a FAPE tailored to meet his unique needs and one that is "reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances." Endrew F. v. Douglas Cty. Sch. Dist., 580 U.S. ___, 137 S.Ct.988, 999 (2017). A focus on the particular child is at the core of the IDEA. Endrew F., 137 S.Ct. at 999. Under 20 U.S.C. Section 1414(d)(3)(A), the IDEA mandates an IEP team to consider a child's strengths, weaknesses and deficiencies, as well as the results of the most recent evaluations of the child together with developmental and functional needs of the child. In order to determine the student's requirements and needs, the team must review and consider evaluations, assessment and information provided by the child's parents, teachers and service providers and thereon determine the type of program required for the child. A board of education may be required to pay for educational services obtained for a child by the child's parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim. (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; see also Frank R. and Dianne R. v. Bd. of Educ. of Hyde Park,459 F.3d 356 [2d Cir. 2006], cert denied, Board of Educ. of Hyde Park Cent. School Dist. v. Frank R.,2007 WL 2982269 [Oct. 15, 2007]. The case at hand is a tuition reimbursement case and is therefore governed by the holding of the U.S. Supreme Court in Burlington School Comm. v. Dept of Education (471 U.S. 359 [1985]). That case set forth a three-prong test for determining if tuition reimbursement is warranted: (1) were the services offered by the school district inadequate or inappropriate; (2) where the services selected by the parents appropriate; and (3) do equitable considerations support the parents' claim. Recently enacted state legislation puts the burden of proof for the first prong on the school district and for the second prong on the parent (Chap. 583 of Laws of 2007).
Prong I:
An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the child's needs, establishes annual goals and short-term instructional objectives which are related to the child's educational deficits, and provides for the use of appropriate special education services to address the child's special education needs. Application of a Child with a Disability, Appeal No 93-12; Application of a Child with a Disability, Appeal No 93-9; Application of a Child with a Handicapping Condition, Appeal No 92-7; Matter of Handicapped Child, 22 Ed Dept Rep 487, March 11, 1983. The SRO has found that allegations that are left unchallenged are deemed as true "unless found to be inconsistent with the evidence in the record." Application of a Student with a Disability, 01-044 (SRO March 27, 2002). The DOE's silence at hearing has the effect of conceding every point alleged by the parent against the DOE unless it is inconsistent with the hearing record. Id.
Herein, DOE opted not to defend its Prong I burden thus equating to conceding of a FAPE denial. Therefore, no further analysis is warranted as the Parents have met the first of the three Burlington/Carter criteria for tuition reimbursement.
Prong II:
Having determined that the DOE did not offer the student a FAPE for the 2021/22 school year, I now proceed to evaluating the appropriateness of the parents' unilateral placement of the student at [REDACTED]. The parent's failure to select a program approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Florence County Sch Dist Four v. Carter 510 U.S. 7 [1993]). The private placement need not employ certified special education teachers, Carter, supra. The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of the unilateral placement: "No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction". (Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).
[REDACTED] is described as "a small college preparatory boarding and day school in [REDACTED] for students with language-based learning differences in grades 6-12….We incorporate Executive Function strategies into every class in a systematic and unified manner, so that students develop and explore many approaches to getting and staying on track with their academics. We provide structured study skill instruction throughout the day as well as in the evening……..Students all have diagnosed learning differences. These differences can include specific language-based learning differences such as dyslexia, executive function challenges, ADD or ADHD, written expression weaknesses, dysgraphia and math difficulties such as dyscalculia…..Typically, our students come to us when they have not found success in more traditional schools" (Exhibit F and AA).
[REDACTED] attested:
"academic classes are self-contained and have four students with one teacher, on average. Academics are taught through whole group learning, small group learning, direct teaching and individual practice. The program and curriculum are modified and individualized to meet each student's needs…..We maintain a student to-faculty ratio of 2:1….. A full array of support services is offered and integrated directly into the student's daily program. Those services are counseling, speech, occupational therapy, and 1:1/small-group Social Emotional Learning Coaching SEL support" (Exhibit AA).
[REDACTED] attested based on her professional opinion, experience and interactions with [REDACTED] and with all of the teachers, providers and therapists who worked with him that [REDACTED] was able to meet his's needs during the 2021/22 school year and that his educational program was tailored to his specific needs.
During cross-examination, [REDACTED] indicated no distinction to exist between day and residential students as when the academic day ends all students are welcome to participate in after-school activities/athletics (T @ 103-104). Thereafter, in the evening hours before the students retire to bedtime, residential students may be engaged in a flurry of activities, to include: Social Emotional Learning Coaching (SEL) classes, socialemotional classes, executive-function life skills class, or evening activity as sponsored by the dorm parents (T @ 104).
In the case at hand, I credit the uncontroverted evidence (Exhibits K-Y) and testimony (Exhibits Z and AA) submitted by Parent and find it establishes that the placement at [REDACTED] was specifically designed to address [REDACTED]'s needs for the 2021/22 school year. In totality, the record reflects [REDACTED] provided a rich supportive environment that correlated well with [REDACTED], that the curriculum was specifically tailored to meet [REDACTED]'s needs and that he received a highly individualized instruction that enabled him to make appropriate progress. The DOE failed to corroborate its allegation that [REDACTED] did not require a residential program and that Parent whimsically placed him in such a program. I find [REDACTED] (residential program) was an appropriate placement as it provided a program and services that were directly related to [REDACTED]'s needs and one in which he was able to make meaningful progress. I find the evidence to substantiate the program at [REDACTED] to offer a small supportive environment with intensive 1:1 and small group instruction, modifications and supports required by [REDACTED] to make progress. Related services were provided and incorporated into the academic program.
Based upon the foregoing, I find that the student made meaningful progress at [REDACTED] for the 2021/22 school year across the board: academically, socially and emotionally. The record reflects that [REDACTED] was a placement that was "specifically designed to meet the unique needs" of the student Frank G, supra and that [REDACTED] has made progress therein.
Prong III:
Having found [REDACTED] an appropriate placement, I now consider equitable considerations, the final criterion for a reimbursement award. In weighing the equities, "the critical consideration, as the Court sees it, is whether they have cooperated in good faith to attempt to develop an IEP to the maximum extent possible, Schaffer, supra. The DOE did not present any evidence or testimony regarding the equity considerations for the 2021/22 school year. All indications are that the Parent cooperated with the DOE and did not interfere in any way with the DOE's obligation to provide a FAPE for the Student for the 2021/22 school year, participated in the IEP meeting and visited the recommended placement. Further, Parent provided the District with ten days' notice about their concerns as well as their intention to unilaterally place [REDACTED] at [REDACTED] for the 2021/22 school year.
I find (1). that the DOE failed to offer the student a FAPE for the 2021/22 school year, (2). that the unilateral placement of the student at [REDACTED] was appropriate (3). that the program at [REDACTED] was "reasonably calculated" to provide [REDACTED] with meaningful educational benefits and (4). that equitable considerations weighed in favor of the parents' request for reimbursement for all costs associated with the placement of the student at [REDACTED] for the 2021/22 school year.
ORDER
Therefore, it is hereby ordered that within thirty (30) days of receipt of this Order, the Department of Education shall reimburse the tuition and all fees associated with the student's unilateral residential placement at the [REDACTED] for the 2021/22 school year. Total tuition and costs: $89,336.00 (Exhibits D and E).
All reimbursements and direct funding shall be supported by the presentation of appropriate documentation.
This Order excludes any payments that may have been previously paid by the DOE pursuant to any Pendency Agreement.
Dated: October 22, 2023
Maria R. Dispenza
MARIA R. DISPENZA, ESQ.
Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
PLEASE TAKE NOTICE
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.
DOCUMENTATION ENTERED INTO THE RECORD ON AUGUST 31, 2023
A. Parent: Impartial Hearing Request, 06/02/22 – 6pp
B. Ten Day Notice, 08/24/21 – 2pp
C. Neuropsychological Evaluation, 05/2019 – 18pp
D. Enrollment Contract, 05/05/2021 -3pp
E. Payment Affidavit, 06/28/22 – 3pp
F. Program Description, 2021/22 -1pp
G. Attendance Record, 2021/22 -29pp
H. Term Schedule, undated -1pp Fall
I. Term Schedule, undated – 1pp Winter
J. Term Schedule, undated -1pp Spring
K. Academic Update, 10/01/21 -4pp Fall 2021
L. Academic Update, 10/29/21 -4pp Fall 2021
M. Term 2021 Report, undated -5pp Fall
N. Academic Update, 02/2022 -4pp
O. Winter Term Report Card, undated -6pp 2022
P. Academic Update, 04/15/2022 -4pp
Q. Academic Update, 05/06/2022 -3pp
R. Final Grade Report, undated -5pp 2022
S. 2021/22 Language & Literacy Progress Report (Trimester I), undated -6pp
T. 2021/22 Language & Literacy Progress Report (Trimester II)), undated -7pp
U. 2021/22 Language & Literacy Progress Report (Trimester III), undated -7pp
V. 2021/22 Language & Literacy Progress Report, 11/2021 -2pp
W. 2021/22 Language & Literacy Progress Report, 03/2022 -3pp
X. 2021/22 Language & Literacy Progress Report, 05/2022 -2pp
Y. 2021/22 Language & Literacy Progress Report, 05/2022 -1pp
Z. Affidavit of [REDACTED], undated -5pp
AA. Affidavit of [REDACTED], 08/24/2023 -6pp