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CASE NUMBER:573603 – NYC:226757
FINDINGS OF FACT AND DECISION REDACTED
Case Number: 226757
Student’s Name: “REDACTED”
Date of Birth: REDACTED
District: REDACTED
Hearing Requested by: “REDACTED”, Parents
Date of Hearing: September 29, 2022
Record Close: September 28, 2023
Hearing Officer: ANNETTE HICKS GILL, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED JULY 15, 2022 *
For the Student:
“REDACTED”, Advocate
For the Department of Education:
“REDACTED”, District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED AUGUST 16, 2022 *
For the Student:
“REDACTED”, Advocate
For the Department of Education:
“REDACTED”, ESQ., District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED SEPTEMBER 29, 2022 *
For the Student:
“REDACTED”, Advocate
For the Department of Education:
“REDACTED”, ESQ., District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED NOVEMBER 3, 2022 *
For the Student:
“REDACTED”, Advocate
For the Department of Education:
“REDACTED”, ESQ., District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED DECEMBER 13, 2022 *
For the Student:
NONE
For the Department of Education:
“REDACTED”, ESQ., District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 5, 2022 *
For the Student:
“REDACTED”, Advocate
For the Department of Education:
“REDACTED”, ESQ., District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED FEBRUARY 2, 2022 *
For the Student:
“REDACTED”, Advocate
For the Department of Education:
“REDACTED”, ESQ., District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 2, 2022 *
For the Student:
“REDACTED”, Advocate
“REDACTED”, Parent
“REDACTED”, Head of Schools, [REDACTED] Academy 20
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” or “[REDACTED]”) is a [REDACTED]-year-old student whose parents “REDACTED” and “REDACTED” (Parents) 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.
A status conference was held on July 15, 2022. The substantive hearing was set for August 16, 2022, however on various dates, it was adjourned for various reasons. A full hearing was conducted on March 2, 2023. Appropriate extensions were granted, and this matter was closed on September 28, 2023.
DISTRICT AND PARENT POSITIONS
The Due Process Complaint (DPC) dated June 2, 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] Academy. (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).
At the impartial hearing on March 2, 2022 the District appeared but did not offer any documentary or oral evidence. The student’s mother “REDACTED” testified and “REDACTED”, Educational supervisor at “REDACTED” gave oral testimony in support of the claims outlined in the DPC.
“REDACTED”, educational supervisor at “REDACTED” testified at the hearing that the Student improved because of a course at “REDACTED” that allowed them to kind of learn more about careers and develop skills towards careers. It gave her opportunities to see what areas of strength that she would like to explore and become more independent as she gets older. It also gave her a kind of path as to where she wanted to be once she graduates and leaves high school. She testified that the “REDACTED” course gave the student more of a focus as to what she would want to do pursuant to her high school education. She testified that the goals in IEP were not to the benefit of the student’s specific needs. There were no goals listed for pre-vocational. However, at “REDACTED” the student was able to progress academically and also socially able to flourish. She testified that the school was able to give her some strategies and skills to be able to develop friendships. She further testified that a few weeks in the latter part of the second semester she wasn't receiving services in the area of OT and PT due to staffing.
The student’s mother testified that her daughter has academic difficulty in writing for a long period of time. If the teacher asks her to write a paragraph, she will have to stop in the middle to rest her hand. “REDACTED” has a diagnosis of juvenile rheumatoid arthritis. It affects her hands, her fingers, her wrists, her legs, her ankles, her knees, where she's not able to lift over five pounds. She has trouble walking up and down the steps, alternating her feet. She has to hold on to the railing, she goes at a slow pace and lags behind with her friends.
The Parent participated in the IEP meeting with the Department of Education for the '21/'22 school year for “REDACTED”. The CSE did not give the Parent any information on how they would assist or provide accommodations for “REDACTED” in regards to how her arthritis impacted her ability to learn in the classroom.
The parents paid monies towards the tuition for the student’s '21/'22 school year at “REDACTED” but due to financial hardship could not afford the total tuition amount. The student made academic progress at “REDACTED” during the school year in that she was more focused in her academic skills, and she could write better. The small size of the class is the reason her daughter has progressed so well.
The District representative did not cross examine the parent.
The following finding is proposed in the Complaint (Exhibit A):
“REDACTED”’s IEP fails to offer her a FAPE; Mrs. “REDACTED” (Parent) cooperated with the Department of Education; for the 2021-2022 school year the recommended program and placement for “REDACTED” is not appropriate and [REDACTED]’s IEP cannot be implemented in an appropriate manner at the recommended program.
The Parent is seeking, that the impartial hearing officer find in her behalf that she made every good-faith effort to cooperate with the CSE. When Mr. and Mrs. “REDACTED” determined that the IEP and proposed public school placement was not appropriate for their child, they then enrolled their child in the “REDACTED” for the '21/'22 school year. The Parents are seeking, that the hearing officer render a decision that allows for this school to be paid in full for the tuition for the '21/'22 school year.
FINDINGS OF FACT
Pursuant to the Request for an Impartial Hearing dated 6-2-2022 (Exhibit A), the Department of Education (DOE) failed to offer [REDACTED]-year old student [REDACTED] Cohen (the “Student” or “[REDACTED]”) a Free and Appropriate Public Education (FAPE) for the 2021-2022 school year. Also, it is alleged that the DOE violated “REDACTED”’s rights under the Individuals with Disabilities Education Act (IDEA) and Section 504 of the Rehabilitation Act of 1972 by failing to develop and appropriate post-secondary goals. The DOE allegedly failed to evaluate the Student thoroughly and appropriately on a timely basis and develop a timely, substantively and procedurally valid IEP.
At the time of the IEP meeting for the 2021-2022 school year “REDACTED” was classified as a special education student. The Student currently attends “REDACTED” Academy.
It is the parents’ position that the DOE failed to develop an IEP that is reasonably calculated to confer education benefit to their daughter for the following reasons: Large sections of the IEP were not created and or drafted at the IEP meeting. The IEP Team did not possess the required knowledge, training or independence to properly formulate a legal IEP; The DOE representative who handled the IEP meeting made unilateral decisions that were not based on the student’s unique individual needs; The DOE failed to administer the necessary evaluations that could form the basis for the development of an appropriate IEP and the IEP was not based on sufficient evaluative data; The DOE failed to evaluate “REDACTED” in all areas of suspected disability. The DOE pre-determined the IEP, program and placement recommendation and therefore failed to recommend an appropriate program and placement for the student for the 2021-2022 school year. Goals were not written identified, discussed and written at the IEP meeting were therefore not appropriate or sufficient to address all of the student’s needs and the way in which her disability impacts her ability to learn and make progress in the general curriculum. “REDACTED” is currently enrolled in a special education program where she participates in a job training and placement program. However, the IEP does not include appropriate vocational goals for “REDACTED”. The IEP does not contain appropriate goals for “REDACTED” in self-help skills and/or activities of daily living skills. (Exhibit A)
The proposed resolution per the Complaint (Exhibit A) is that “REDACTED” is in an appropriate and necessary placement for the student for the 2021-2022 school year.
Pursuant to the 10-Day Notice dated August 19, 2021 (Exhibit C) the parent placed the Committee on Special Education (CSE) on notice of their intention to seek tuition reimbursement and/or direct payment for [REDACTED]’s tuition for the 2021-2022 school year at “REDACTED”. The parent maintains in the Notice that the NYC DOE failed to offer her child a Free Appropriate Public Education (FAPE).
Pursuant to the Affidavit of “REDACTED”, the Chief Financial Officer of “REDACTED” dated July 19, 2022 (Exhibit I), the student’s first day of school was September 2021 and the total tuition due is $94,220.00.
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, sufficient supporting documentary evidence and witness testimony supports the position that the child was not provided with a FAPE for the 2021-2022 and the DOE did not provide any evidence to the contrary. The District failed to present any testimonial evidence, nor did they submit any documentary evidence to prove that the IEP created for the 2021- 2022 school year provided the Student with a free and appropriate public education.
Additionally, the District failed to present any testimonial or documentary evidence to support that the recommended program could provide the student with appropriate services or implement the subject IEP. The Department of Education also failed to present any documentary or testimonial evidence to prove that it considered adequate evaluative material.
Further, the District did not present any issues concerning equity in this matter.
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 JCSE 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.
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 District of their disagreement with the proposed placement their intentions to place their child in a private school at the public school’s expense within the appropriate timeframe.
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, there is no evidence offered to support a claim that the Parent failed to raise an issue with the District’s evaluation before seeking alternative education options. Under the circumstances, analysis of equities would not prevent an award for the student’s tuition at “REDACTED”.
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 no longer able to meet the student’s needs as demonstrated by the testimony of the “REDACTED” school representative and of 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 equities. 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 or 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 (1st Cir. 2008)
In this case, the Parent gave timely notice, and the District failed to perform an appropriate evaluation of the Student. I 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
1. The New York City Department of Education failed to provide Student a Free and Appropriate Public Education to Student for the 2021-2022 school year;
2. The recommended program and placement for the student in the 2021-2022 school year is not appropriate and the student’s IEP cannot be implemented in an appropriate and effective manner;
3. The New York City Department of Education shall fund tuition costs associated with the student’s appropriate special education program at “REDACTED”; and
4. The New York City Department of Education shall fund tuition at [REDACTED] for the cost of the provision of student’s mandated related services for the 2021-2022 school year.
IT IS SO ORDERED.
Dated: October 11, 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
NONE
PARENT EXHIBITS
Exhibit Date Title Number of Pages
A 6/2/22 Impartial hearing request 6
B undated Program description 1
C 8/19/21 Ten-day notice 2
D unidentified date '21/'22 class schedule 1
E unidentified date ' 21/'22 class profile 1
F unidentified date 21/'22 progress report, 7
G unidentified date '21/'22 related services cost 1 H unidentified date 2021 parent 1040 U.S. Individual Income Tax Return 2 I 7/19/22 School affidavit 2 J 5/2/21 Enrollment contract 7
IMPARTIAL HEARING OFFICER DESCRIPTION
I 3/9/21 IEP 32