Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 226756

Student’s Name: REDACTED

Hearing Requested By: Parent

Dates of Hearing: July 8, 2022

August 16, 2022

October 21, 2022

Actual Record Close Date: November 29, 2022

Hearing Officer: Jean Marie Brescia, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

July 8, 2022 For the Parent:

REDACTED, Advocate

REDACTED, Advocate For the Department:

REDACTED, Esq.

August 16, 2022 For the Parent:

REDACTED, Advocate

REDACTED, Parent For the Department:

REDACTED, District Representative

October 21, 2022 For the Parent:

REDACTED, Advocate

REDACTED, Parent

REDACTED, Chief Financial Officer, REDACTED

REDACTED, Educational Supervisor, REDACTED For the Department:

REDACTED, Consultant Hearing Representative

On June 30, 2022, I was designated as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1415(j), in the matter of REDACTED, after the appointment of another hearing officer recused. REDACTED’s parent requested the hearing on June 2, 2022 in order to challenge the Department of Education’s failure to offer REDACTED a free appropriate public education for the 2021-2022 school year and to seek funding for tuition and costs at The REDACTED (“REDACTED”), a non-public special education school. Ex. A.

A pre-hearing conference was conducted on July 8, 2022. The hearing on the merits was conducted on August 16 and October 21, 2022, due to witness availability resulting from religious observance. The Department presented an opening statement and indicated that it would not offer documents in evidence or present witness testimony. Tr. 17. The Department rested its case. Tr. 17. Parent’s advocate presented an opening statement on behalf of REDACTED’s parent. Tr. 18-19. Parent subsequently testified on her own behalf and presented the testimony of two witnesses. I admitted in evidence Parent’s Exhibits A through I.

The parties made joint applications on the record for extensions of the compliance date. The applications were granted by written Orders of Extension dated July 8, August 16, September 19 and October 21, 2022. The reasons for the extensions are set forth in the Orders.

The record closed on November 29, 2022, upon the hearing officer’s receipt and review of the transcript of the last hearing date, and the Actual Record Close Date is November 29, 2022.

Appended to the record are the names of the persons who appeared at the hearing and a list of the documents entered into evidence.

Findings of Fact

• • REDACTED is a REDACTED year old young man whose disability, for the purposes of the IDEA, is classified as autism. Exs. A, E, F.
• • REDACTED experiences difficulties with attention and requires much redirection to remain on task, complete his school work and stay focused. Tr. 45. REDACTED also experiences challenges with impulsivity, appropriate classroom participation, shutting down, communication and social skills, and with behaviors (including tantrumming, elopement, aggression, and noncompliance and verbal abuse of teachers and classmates). Tr. 46-47, 51-52; Ex. F.
• • REDACTED attended REDACTED for the 2021-2022 school year as of September 1, 2021. Exs. A, H; Tr. 45.
• • REDACTED is a special education school for students ages 11 through 21 years. Tr. 58-59. The program includes instruction in academics (English language arts, mathematics, science, history), communication skills, ADL skills, behavioral skills, and community and vocational skills. Tr. 41-42; Exs. B, F.
• • REDACTED educates students with a range of challenges, offers 6:1:2, 8:1:1 and 12:1:1 classes, and utilizes the New York State Core Curriculum with supplemental curricula such as Reading A-Z and ABLLS. Tr. 44.
• • REDACTED has available to its students the related services of occupational, physical and speech/language therapies and counseling. Tr. 43.
• • REDACTED does not offer religious instruction. Tr. 42-43.
• • REDACTED employs certified special education teachers and appropriately licensed related services providers. Tr. 43.
• • During the 2021-2022 school year, REDACTED attended a self-contained special education class that included nine students and was taught by a certified general and special education teacher. Tr. 47-.48; Ex. F.
• • The students in the class had been diagnosed with autism, speech and language difficulties and/or learning disabilities and ranged in age from 14 to 18 years, and were functioning on similar academic, emotional, behavioral and social levels. Tr. 47-48; Ex. E.
• • Instruction was paced to the students’ learning needs; English language arts, math, history and science were taught at the students’ instructional levels with teachers utilizing differentiated instruction. Ex. B.
• • REDACTED received CDOS programming in his classroom. CDOS programming focused on career and development of “the soft skills” needed “in a vocational setting,” such as greeting others and social conflicts in the work setting. Classes also focused on writing resumes and cover letters and understanding difference careers. Tr. 48-49; Ex. B.
• • REDACTED’s program for REDACTED included an emphasis on developing his social and emotional skills, including relationship building and targeting his behaviors throughout the school day. Tr. 52-53.
• • Social and emotional skills and behavior was addressed in his academic classes, counseling, and a social skills group focused on language skills and understanding the perspectives of others. Tr. 53.
• • REDACTED personnel also implemented a “proactive individualized behavior plan” with REDACTED to assist him in maintaining appropriate behaviors and remain focused and “on task.” Ex. F at 1.
• • REDACTED required frequent redirection from an adult, at a rate of every two to three minutes to refocus himself on the learning task with which he is supposed to be engaged; he also needs frequent reminders to remain at his desk during lessons. REDACTED addressed these needs through a small class and the support of a paraprofessional for REDACTED. Exs. E, F.
• • REDACTED’s schedule included instructional breakfast, academic support, English language arts, math, science, social group, community based lunch, government/economics, community studies, executive functioning, physical education, CDOS, language “boot camp,” and health. Ex. D.
• • REDACTED provided REDACTED with speech therapy (two individual sessions per week and on group session per week) and counseling (one individual session per week and on group session per week). Tr. 50.
• • REDACTED made progress at REDACTED during the 2021-2022 school year in the following areas (see Ex. F, passim):
• • Class participation and classroom behaviors;
• • Essay writing and grammar;
• • Math, including multi-step algebra word problems and geometry;
• • Engaging in science projects;
• • Answering written short answer questions and handing in homework assignments;
• • Following directions;
• • Pragmatic language, specifically appropriate self-advocacy skills and perspective-taking;
• • Expressive language, specifically conversation skills; and
• • Social skills, including maintaining appropriate language with peers and social problem solving.
• • REDACTED’s mother observed that REDACTED made progress at REDACTED during the 2021-2022 school year: he improved his money skills and ability to utilize calming strategies and social skills. Tr. 68-69.
• • REDACTED’s parents entered into an enrollment contract with REDACTED for REDACTED to attend REDACTED for the 2021-2022 12-month school year commencing on July 6, 2021. The contract obligates them to pay $89,950.00 in tuition and the costs of related services for the 2021-2022 12-month school year. Ex. I.
• • A record of REDACTED’s attendance prepared by REDACTED personnel states that REDACTED attended REDACTED from September 1, 2021 through June 24, 2022. Ex. H.
• • The affidavit signed by REDACTED’s chief financial officer, who testified at the hearing, states that:
• • REDACTED attended REDACTED from September 1, 2021 until June 24, 2022;
• • The total tuition and related costs REDACTED for the period from September 1, 2021 through was $89,420.00. Ex. G.
• • REDACTED’s parents have not paid the tuition or related services costs. However, they continue to owe, and are obligated to pay, these amounts. Tr. 63-64; Exs. G at 2.
• • REDACTED’s parents did not provide information about the family’s income, beyond REDACTED’s mother’s statements that she “can’t pay for the school” and that it is “expensive.” Tr. 67.
• • REDACTED’s mother submitted a ten-day notice letter to the Department on June 17, 2021. Ex. C.

Decision

A board of education may be required to pay for education 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. Department of Education, 471 U.S. 359 (1985). The fact that the school selected by the parents is not approved as a school for children with disabilities by the State Education Department (as in the instant case) is not dispositive of the parents’ claim for tuition reimbursement. Florence County School District v. Carter, 510 U.S. 7 (1993).

The central purposes of the IDEA are to ensure: (1) that students with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living and (2) that the rights of students with disabilities and their parents are protected. 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 U.S. 49, 51 (2005); Board of Education v. Rowley, 458 U.S. 176, 179-181 (1982). The first step in the inquiry is to determine whether the school district offered a free appropriate public education to the student. See, e.g., Application of a Child with a Disability, Appeal No. 07-008; Application of a Child with a Disability, Appeal No. 06-121. A free appropriate public education includes special education and related services designed to meet the student’s individual needs, provided in conformity with a written IEP. See 20 U.S.C. §1401(9); 20 U.S.C. §1414(d).

A school district offers a student a free appropriate public education when (1) it complies with the procedural requirements of the IDEA and (2) the IEP developed by the district must be “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 Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 999 (2017); see also Rowley, 458 U.S. at 207; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 (2d Cir. 2014); R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012). 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. The school district also must ensure that “[t]o the maximum extent appropriate, children with disabilities are educated with children who are not disabled” that is, in the student’s least restrictive environment. 20 U.S.C. § 1412(a)(5)(A); 8 NYCRR 200.1(cc), 200.6(a)(1); see M.W. ex rel. S.W. v. New York City Dep’t of Educ., 725 F.3d 131,143 (2d Cir. 2013).

The particular educational needs of a student with a disability and the services required to meet the needs must be set forth in a written IEP. Honig v. Doe, 484 U.S. 305, 311 (1988); 20 U.S.C. § 1401(9)(D); see 20 U.S.C. § 1414(d); 34 C.P.R. § 300.320. An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs. 34 C.F.R. 300.320 (a)(1); 8 N.Y.C.R.R. 200.4(d)(2). The CSE then must establish annual goals related to the identified needs of the student and provide for the use of appropriate special education services in the IEP. 8 N.Y.C.R.R. 200.4(d)(2)(iii), (v).

In New York, the school district bears the burden of proof in an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. N.Y. Educ. Law § 4404(1)(c); see R.E., 694 F.3d at 184-85.

Did the Department Offer REDACTED a FAPE?

The Department did not avail itself of its opportunity to offer testimony to demonstrate that it offered a FAPE to REDACTED. As a result, the Department did not carry its burden of proof and cannot prevail on the first “prong” of the Burlington/Carter test.

Is REDACTED’s Program Appropriate for REDACTED?

The parent bears the burden of proof concerning the appropriateness of REDACTED for REDACTED. See, e.g., Frank G. v. Board of Education of the Hyde Park Central School District, 459 F. 3d 356, 364 (2d Cir. 2006), cert. denied, 128 S. Ct. 169 (2007). To meet this burden, the parent must show that the educational services provided at REDACTED addressed REDACTED's identified special education needs. See C.F., 74;6 F.3d at 82; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 837 (2d Cir. 2014); R.E., 694 F.3d at 187; G.B. and L.B. on behalf of N.B. v. Tuxedo Union Free School District, 09-CV-859 (S.D.N.Y Sept. 30, 2010); Application of the Bd. of City School District of the City of New York, Appeal No. 95-79, at pp. 6-7; Application of a Child with a Disability, Appeal No. 96-1. The Second Circuit instructs that:

No one factor is necessarily dispositive in determining whether parents’ unilateral placement is “reasonably calculated to enable the child to receive education benefits.” Rowley, 458 U.S. at 207. 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.”

Frank G., 459 F. 3d at 364 (emphasis added); also Bd. of Educ. of the Wappingers Cent. Sch. Dist. v. D.M., 831 F. App’x 29, 78 IDELR 2 (2d Cir. 2020) (Summary Order).

The preponderance of the evidence establishes that REDACTED provided REDACTED with an educational environment in which his identified special education needs were addressed through specialized instruction and related services as well as individualized goals and interventions targeted to address his behavioral, attentional, and social/emotional challenges and his transition needs. REDACTED addressed REDACTED’s needs as described in paragraphs 9 through 18, above. Furthermore, REDACTED made progress at REDACTED during the 2021-2022 school year. See paragraphs 19 through 20, above.

The preponderance of the evidence demonstrates that REDACTED was an appropriate special education placement for REDACTED for the 2021-2022 school year. See, e.g., T.K. v. New York City Dep’t of Educ., 810 F.3d 869, 878 (2d Cir. 2016) (unilateral program appropriate when it meets child’s needs); F.B. v. New York City Dep’t of Educ., 132 F. Supp. 3d 522, 555-56 (S.D.N.Y. 2015) (unilateral program appropriate when it provided instruction and related services individualized to child’s needs).

Considering the “totality of the circumstances” as required by the Second Circuit in Frank G., the evidence supports a finding that the program at REDACTED was appropriate for REDACTED for the 2021-2022 school year. As a result, REDACTED’s parents prevail with respect to the second Burlington/Carter criterion.

The Equities With respect to the third Burlington criterion, whether equitable considerations support the parent’s claims, the evidence establishes that REDACTED’s parent provided the requisite statutory notice to the Department. See, e.g., R.E., 694 F.3d at 185, 195; M.F. v. New York City Dep’t of Educ., 2013 U.S. Dist. LEXIS 79181 at *34-*35 (S.D.N.Y. June 4, 2013) (“equitable considerations” include parental cooperation with the school district, attending CSE meetings, and providing notice to the school district).

There are other equitable considerations to address in this case. First, although REDACTED’s parent seeks direct payment of tuition and related services costs to REDACTED, she has not demonstrated her inability to pay the costs of REDACTED’s tuition and related services. As the federal courts have made clear, such direct payment is appropriate only when (a) equitable considerations favor an award of tuition and/or services costs, and (b) the student’s parents, though legally obligated to make payments for tuition and/or services costs, have not made such payments because they do not have the financial ability to do so. Connors v. Mills, 34 F. Supp. 2d 795 (N.D.N.Y. 1998); Mr. and Mrs. A. v. New York City Department of Education, 769 F. Supp. 2d 403, 428-429 (S.D.N.Y. 2011). While REDACTED’s parent has demonstrated that she has an obligation to pay REDACTED’s tuition and related services costs, she has not demonstrated her lack of available financial resources, by, for example, submitting a copy of an income tax return or some other documentation or more detailed testimony of the family’s financial means. Her unsupported statement that she cannot pay is not sufficient in this instance. As a result, reimbursement for tuition and services costs “upon proof of payment for services delivered is the appropriate remedy.” Application of a Student with a Disability, Appeal No. 22-050.

This brings this decision to the second equitable issue: the tuition costs of $89,950.00 specified in the enrollment contract (Ex. I) are for a 12-month program commencing on July 6, 2021 and concluding on June 24, 2022.^[1] The rest of the record, including REDACTED’s attendance letter and the affidavit of REDACTED’s chief financial officer, indicates that REDACTED’s tuition and related services cost of $89,420.00 are for the time period from September 1, 2021 through June 24, 2022. Exs. G, H. REDACTED’s parents are entitled to reimbursement only for tuition and related services costs for the time period that the record demonstrates he was in attendance at REDACTED. The school’s own evidence—specifically REDACTED’s attendance letter and the affidavit of its chief financial officer— shows that REDACTED attended REDACTED from September 1, 2021 through June 24, 2022. As a result, I do not have the authority to order a reimbursement award for July and August, 2021.

Therefore, for all the above reasons, it is hereby ORDERED that:

The Department of Education shall reimburse REDACTED’s parent for REDACTED’s tuition and related services costs, not in excess of $89,420.00, attributable to the time period from September 1, 2021 through June 24, 2022, upon proof of payment for educational and related services delivered to REDACTED during the September 1, 2021 through June 24, 2022 time period.

Dated: December 13, 2022

______________________________

JEAN MARIE BRESCIA, ESQ.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the 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

Parent’s Evidence

ITEM NUMBER

DATE

DESCRIPTION

Number of pages

A 06/02/22 Impartial Hearing Request 5

B Program Description 1

C 06/17/21 Ten Day Notice 2

D 21/22 Class Schedule 1

E 21/22 Class Profile 1

F 21/22 Progress Report 8

G 07/14/22 Tuition Affidavit 2

H 21/22 Attendance Record 1

I 06/14/21 Enrollment Contract 7 Footnotes

[1] The enrollment contract does obligate REDACTED’s parent to pay the costs of related services provided by REDACTED during the 2021-2022 school year. The precise amounts owed for provision of related services are not specified in the contract. Ex. I at 2-3.