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FINDINGS OF FACT AND DECISION
Case Number: 226866
Student’s Name: [REDACTED]
School District: N.Y.C. Dept. of Ed.,
Impartial Hearing Officer: Teril Holston, Esq.
Date of Filing: June 10, 2022
Hearing Requested by: Parent
Date of Hearing: September 7, 2022
Record Close Date: September 23, 2022
Date of Decision: September 23, 2022
NAMES AND TITLES OF PERSONS WHO APPEARED September 7, 2022
For the Student:
[REDACTED]
[REDACTED]
For the Department of Education:
[REDACTED]
Parent Witnesses:
[REDACTED]
[REDACTED]
[REDACTED]
INTRODUCTION
This matter comes before the undersigned Hearing Officer at the request of Petitioner, the parent of the student, a REDACTED-year-old school student classified as a student with a disability under the Individuals with Disabilities Education Act (“IDEA”); New York State Education Law; and the New York State regulations.
On June 10, 2022, Petitioner filed a Due Process Compliant (“Complaint” or “DPC”) against the New York City Department of Education (“NYC DOE” or “DOE” or “District”) alleging that the District failed to provide the student with a Free and Appropriate Public Education (“FAPE”) for the 2021-2022 school year, in that the IEP program and placement were inappropriate (P-A)[1]. The Petitioner is seeking tuition reimbursement/prospective payment for their unilateral placement of the student at Private School, a private program not approved by the Commissioner of Education for the education of students with disabilities for the 2021-2022 school year. (Id.). Furthermore, the parent alleges that the equities support their claim for tuition reimbursement and direct tuition funding for the school year at issue (Id.).
In light of the foregoing and as more fully discussed below, I find that a) the DOE failed to meet its burden that it offered the student FAPE for the 2021-2022 school year, the b) Private School offers the student with specially designed instruction sufficient to meet student’s needs, and c) the equities support the Parent’s requested relief.
PROCEDURAL HISTORY
On June 16, 2022, the undersigned was appointed to conduct an impartial hearing.
The parties held a prehearing conference on July 15, 2022 (IHO-I).
On September 7, 2022, the virtual impartial hearing on the merits of the DPC commenced and concluded. The record closed on September 23, 2022.
At the hearing, the District’s representative presented no documents and did not call any witnesses. The District made a brief opening statement, arguing that the parent’s unilateral placement was inappropriate because it was similar to the program offered by the District.
The Parent, through their representative, submitted documents (Ex. P-A though P-T),[2] including the affidavit testimony of the parent (P-R), Psychologist (P-S), and the Associate Head of Private School (P-T), in support of the Parent’s case. The District objected to several exhibits (See Generally Transcript).[3] The Parent rested, and the DOE advised that it had no further testimony or documents to offer, and made a closing statement Parent’s representative made a detailed closing statement reiterating the relief sought, summarizing the DOE’s failures, including the specific examples supporting the assertions, and linking it to the evidence on record.
FINDINGS OF FACT
After a full review of the record generated at hearing, I make the following findings of fact and determinations:
The student is a REDACTED-year-old classified by the CSE as student with a Multiple Disabilities (P-E). The student was also diagnosed with an Attention Deficit Hyperactivity Disorder (“ADHD”) and Mild Intellectual Disability (P-H; P-R; P-S).
In August 2020, the student was evaluated by a clinical psychologist and found to have executive functioning challenges, poor attention, poor auditory functioning, and processing speeds (P-H; P-S). The psychologist noted that the student’s IQ score fell in the extremely low range and the student experienced processing delays (P-S). The student is easily distracted and displayed social difficulties (Id.). The Psychologist noted that the student requires a specialized nonpublic school program where he can receive individualized supports and not to be placed with students with maladaptive behaviors (P-H; P-S). The psychologist further recommended that the student receive individual and group speech language therapy each week (Id.). The psychologist recommended Private School due to her familiarity with the program and the student’s needs (P-S).
On May 7, 2021, the CSE convened an IEP meeting (P-E). According to the parent, the District did not discuss the evaluation or its recommendations during the IEP meeting (P-R). The CSE recommended a 12:1+1 classroom at a community school, group counseling 1x40, group OT 1x40, and group speech language therapy 2x40 (P-E.). Following the meeting, the parent was not provided with a School Location Letter but received an acceptance letter to Public School in June 2021 (P-D; P-R). The parent sent several emails and left voicemails for the assistant principal of public school (P-R). The parent provided Ten-Day Notice to the District of her intention to enroll the student at Private School on August 24, 2021 (P-C). The parent signed a contract for the 2021-2022 school year, with tuition costs amounting to $78,775, which would be a burden on the parent (P-F; P-R).
The parent visited the public school on November 4, 2021 and met with the principal, where she learned that the school did not have 12:1+1 setting and only provided a 15:1 ratio for special education (P-R). Further the principal reported to the parent that the student’s IEP would need to be changed (Id.).
The student is excelling at Private School (P-R; P-T). The student made progress in academic subjects, participated in an internship, and learned transitional skills. The student was placed in a classroom with 11-12 students, with two instructors, with related service providers- speech therapist, occupational therapist and counselor providing small group services several times per week, as well as push in services as needed for the student (P-T).
APPLICABLE LEGAL STANDARD
The Individuals with Disability Education Act (“IDEA”) establishes that students with disabilities are entitled to a free and appropriate education (“FAPE”).[4] A “free appropriate public education consists of educational instruction that is designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction.”[5] In order to demonstrate that a FAPE is being provided, the school district must show “that it complied with the procedural requirements set forth in the IDEA, and that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits.”[6] The student's recommended program must also be provided in the least restrictive environment with non-disabled peers.[7]
The parent seeks tuition reimbursement for the unilateral placement of the student in Private School for the 2021-2022 school year. As set forth in Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); Sch. Comm. Of Burlington v. Dep’t of Educ., 471 U.S. 359 (1985) it is well established that a District may be required to reimburse parents for tuition payment to a private school if the services offered by the District were inadequate or inappropriate, the services selected by the parents were appropriate under the IDEA, and equitable considerations support the parent’s claim for reimbursement. Thus, consideration of such a claim has been expressed by a three-prong test: (1) was student denied FAPE; (2) the appropriateness of the Parent’s unilateral placement; and (3) a balancing of the equities.
The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE[8]. A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction."[9] “To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”[10] Further, “an IEP is not a form document” and it should be constructed after carefully evaluating the student.[11]
The burden of persuasion and proof is by the preponderance of the evidence standard, which requires a finding that the existence of a fact is more probable than not. When the evidence is evenly balanced, the party with the burden loses. The burden of proof at an impartial hearing is on the district, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement[12]. Accordingly, the burden of production and persuasion is on the District for the first and third prongs and on the Parent for the second prong.
DISCUSSION
- • Prong I: FAPE It is asserted in the DPC that the DOE failed to provide the student with a FAPE for the 2021-2022 school year for a number of reasons. As to Prong I of the Burlington/Carter standard, the DOE failed to meet its burden. Rather the District failed to present any witnesses or evidence. While the parent submitted the most recent IEP into the record, a review of same offers no explanation as to how the CSE made its recommendation, how the IEP appropriately describes the Student, or whether the IEP is meaningfully calculated to confer educational benefit. Per the parent testimony, the District failed to consider the Psychologist’s evaluation or recommendation at the IEP meeting. In short, the District declined to “offer a cogent and responsive explanation for their decisions” in creating that IESP, and it is “through the IE[S]P that “[t]he ‘free appropriate public education’ required by the Act is tailored to the unique needs of” a particular child”. Endrew F., 137 S.Ct. at 1002. The District failed to provide any defense of the program recommended for the student. Therefore, the undersigned is constrained to find that the District failed to offer the student a FAPE for the 2021-2022 school year.
- • Unilateral Placement In this case, as the District did not offer the student a FAPE for the 2021-2022 school year, the next issue to determine is whether the Parent’s unilateral placement of the student at Private School for the 2021-2022 school year, was appropriate. The Parent argues that the Private School is an appropriate unilateral placement for the student as it provides instruction and services that are specifically designed to meet the student’s unique needs and that enable the student to make meaningful progress there. For the reasons below, the Parent’s unilateral placement was appropriate.
Parents need not show that the placement provides every special service necessary to maximize the student's potential.[13] When determining whether the parents' unilateral placement is appropriate, that placement must be “reasonably calculated to enable the child to receive educational benefits.”[14] A private placement is only appropriate if it provides education instruction specially designed to meet the unique needs of a student.[15]
A private school placement must be “proper under the Act”[16], i.e., the private school must provide an educational program which meets the student's special education needs.[17] A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement.[18] The private school need not employ certified special education teachers or have its own IEP for the student.[19] The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement:
“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.”[20]
Moreover, where the failed to provide the student with a FAPE, the District is precluded from arguing that the testing, evaluations, or assessments introduced by the Parent’s and utilized by the unilateral placement are not sufficiently comprehensive evaluations of the student’s functioning levels and needs, as it is the District that retains the requirement to comprehensively evaluate the student.[21]
- • Student Needs In this case, the Parent submitted a neuropsychological evaluation that concluded that the student needs a small class setting with related services to address his deficits and the negative impact his diagnoses have on his ability to stay focused and learn in the classroom. Specifically, the record indicates that the student would not excel in 12:1+1 classroom (see P-A; P-B; P-C; P-H; and P-N).
- • Program The parent has placed student in Private School, a school serving students with learning disabilities. All of the student’s teachers hold graduate degrees or are in graduate school for education. Further, all the student’s related service providers hold Masters degrees and licensure in NY for their respective fields. The school staff reviewed the student’s academic records and developed an individualized academic plan for the student with goals and measurable objectives.
The Private School Program is structured as smaller setting, with 12 students, 1 special education teacher and 1 teacher assistant. Further, the parent’s witnesses on cross examination testified that there is a distinct difference between the 12:1+1 public program and the 12:2 program offered by the Private School. Specifically, the Private School is taught by two instructors, where the public program has one instructor and a paraprofessional. The District provided no evidence as to the credentials or qualifications of a paraprofessional. The Private School offers related services built into the class schedule, in small groups, as well as additional push in services, as needed. The Psychologist who conducted the evaluation of the student in June 2020, specifically recommended the program and felt that the school met the needs of the student and provided the structure and environment that would foster his learning.
- • Progress With respect to the student’s progress at Private School, a finding of progress is not required for a determination that a student's unilateral placement is adequate, but it is a relevant factor to be considered.[22] However, here the student has made both academic and executive functioning progress as evidence in the final report in evidence, as well as the testimony of the parent and Associate Head of the Private School (P-B; P-Q; P-R; P-T).
Based on all of the above, the parent has met the burden that the Private School is an appropriate placement for the student for the 2021-2022 school year as required.
The hearing record demonstrates that the student’s individual special education needs were addressed by the private school and that the instruction offered was "reasonably calculated to enable the child to receive educational benefits."[23] Further, the District took the opportunity to cross-examine the Parent’s witnesses. Under these circumstances, I find that the Parent’s witnesses are credible.
- • Equitable Considerations Equitable considerations are relevant in determining relief “because the authority to grant reimbursement [under the IDEA] is discretionary.”[24] “With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412 [a][10][C][iii]; 34 CFR 300.148[d]; E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school]; C.L., 744 F.3d at 840 [noting that "[i]important to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA"]).
Reimbursement may also be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to their removal of the student from public school, or by written notice 10 business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense."[25] This 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."[26] Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision.[27] Parents of students enrolled in private school are not exempted from 10-day notice requirements.[28]
The Second Circuit has recently reiterated that "[t]he ten-day notice requirement gives school districts an opportunity to discuss with parents their objections to the IEP and to offer changes to the IEP designed to address those objections—all before the parents enroll their child in a private school and file a due process complaint" and that "if parents unreasonably reject the school district's proposed changes to the IEP, or are otherwise uncooperative, courts and hearing officers are fully empowered to deny them reimbursement"[29]
However, the hearing officer must excuse the failure to provide timely notice if, in her discretion, she determines that the reason for the lack of timely notice is that the school district prevented the parents from providing the notice, the parents had not received the procedural safeguards notice advising of the requirement to provide notice, or compliance with the notice requirement would likely result in physical harm to the student.[30]
In the instant case, the parent provided the necessary Ten-Days’ Notice of their concerns with the District’s offer of a FAPE for the student for the 2021-2022 (P-C). Therein, the parent detailed her specific concerns with the recommendations and provide notice of their intention to unilaterally place the student (Id.). The record does not contain any evidence that the District responded to the parent.
An IHO is not limited to consideration of the statutory equitable factors. See J.T. v. Dep’t of Educ., State of Hawaii, 72 IDELR 95 (D. Haw. 2018). Thus, I also consider the district’s conduct in failing to provide the parent a school placement to implement the IEP. The District had an opportunity to develop an appropriate program that did not require private placement and failed to do so.
By way of relief, Parent seeks reimbursement for their private school tuition costs and to have the balance of unpaid tuition sent directly to the school. Direct tuition funding is relief encompassed by the equitable remedial powers inherent in IDEA. See e.g. Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 406 (S.D.N.Y. 2011) (parents may seek direct funding in the instance in which, “due to a lack of financial resources, [parents of a student with a disability] have not made tuition payments but are legally obligated to do so”). The parent testified that she cannot bear the burden of the tuition costs for the Private School. I find that the unilateral tuition costs, $78,775, exceeds the Parent’s ability to fund and await reimbursement. Equity demands that the DOE fund Student’s Private School tuition in this instance.
In balancing the equities, I find in favor of the Parent. To the extent possible, the Parent has participated in all aspects of the special education process. I find no issue with the reasonableness of the costs, including tuition, associated with the Private School and the Student attended Private School for the 2021-2022 school year (P-B; P-Q).
CONCLUSION
Based on a review of the record and the findings mentioned above, the undersigned makes the following findings:
- • The District failed to provide the student with a FAPE during the 2021-2022 school year.
- • The parent’s unilateral placement at Private School was appropriate and equitable considerations support an award of full tuition reimbursement and direct funding for the 2021-2022 school year.
- • The undersigned has reviewed the parent’s remaining contentions and find them to be either unnecessary to this decision, without merit, beyond my jurisdiction, too vague to be of use, or without sufficient basis in the record for a finding and award of relief. Accordingly, any relief not specifically discussed in this decision is denied, and all the Parent’s remaining claims not discussed herein are dismissed with prejudice.
ORDER
IT IS HEREBY ORDERED that the New York City Department of Education shall directly fund Private School for all tuition and fees for the student’s unilateral placement at Private School for the 2021-2022 school year in amount not to exceed $78,775, within 25 calendar days of receiving an invoice or affidavit detailing amount owed.
DATED: SO ORDERED
9/23/2022 /s/ Teril Holston
Teril Holston, Esq., IHO
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 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.
IMPARTIAL HEARING OFFICER'S CERTIFICATION OF THE RECORD
I, Teril Holston, Impartial Hearing Officer in this matter, do hereby certify that the below Index of Exhibits included within this Findings of Fact and Decision itemizes the entire record before me. I further certify that the materials included in the record are either the original or a true copy of the original materials that were provided to me in this matter.
DATED: CERTIFIED BY
9/23/2022 /s/ Teril Holston
Teril Holston, Esq., IHO
CASE # 226866 EXHIBITS
IHO Exhibits
EXHIBIT
DATE
DOCUMENT
PAGES
I
July 15, 2022
Prehearing Conference Summary & Order
4
District’s Exhibits
NONE
Parent’s Exhibits
EXHIBIT
DATE
DOCUMENT
PAGES
A June 10, 2022 Due Process Complaint, with filing e-mail 12
B February 4, 2022 Private school Progress Report 2021-2022 21
C August 24, 2021 Ten-Day Notice 3
D June 2021 Public High School (Admission Letter) 1
E May 7, 2021 Individualized Education Program (“IEP”) 16
F March 5, 2021 Private School Enrollment Contract 3
G November 19, 2020 Decision and Order 15
H August 14, 2020 Confidential Neuropsychological Evaluation 27
I
June 12, 2020
IEP 18 J June 26, 2019 IEP 16
K
September 18, 2018
IEP
11
L
June 1, 2017
IEP
17
M
June 16, 2016
IEP
18
N
September 18, 2015
IEP
30
O
April 15, 2015
IEP
17
P
March 30, 2015
Psychological Update
8
Q
June 17, 2022
Private School Progress Report 2021-2022
30
R
August 30, 2022
Affidavit
9
S
August 31, 2022
Affidavit
15
T
August 31, 2022
Affidavit
14
Footnotes
[1] Exhibits shall be referred to as follows: “P” for Parent Exhibit; “D” for the District’s or Department’s Exhibits; and “IHO” for the Impartial Hearing Officer’s exhibits.
[2] A more detailed list of exhibits is attached.
[3] The District representative objected to Parent’s exhibits I-O (IEPs for prior school years), exhibit G (prior IHO decision), and exhibits R, S, T (affidavits). After oral argument, exhibit N was stricken from the record and not entered into evidence. All other exhibits were entered into evidence, to be given the appropriate weight.
[4] See, 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 US 49 (2005).
[5] Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 188 (1982).
[6] See, Application of Child with a Disability, Appeal No. 05-061, quoting, Rowley at 206.
[7] See, Walczak v. Florida Union Free Sch. Dt., 142 F.3rd 119 (2nd Cir. 1998).
[8] U.S.C. § 1415[f][3][E][i].
[9] Rowley, 458 U.S. at 203.
[10] Endrew F. v. Douglas Cnty. Sch. Dist. RE-1, 137 S. Ct. 988, 999
[11] Id.
[12] Educ. Law § 4404[1][c]; see R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 [2d Cir. 2012].
[13] . Frank G. v Bd. of Educ., 459 F.3d 356, 364-65 (2d Cir. 2006)
[14] Id.; see Gagliardo, 489 F.3d at 115.
[15] U.S.C. § 1401[29]; 34 CFR 300.39[a][1]; Educ. Law § 4401[1]; 8 NYCRR 200.1[ww]; Rowley, 458 U.S. at 188-89.
[16] Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370
[17] See, Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129.
[18] Carter, 510 U.S. at 14
[19] Id.
[20] Gagliardi, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65.
[21] see 34 CFR 300.305[c]; 8 NYCRR 200.4[b][5][iii]; A.D. v. Bd. of Educ., 690 F. Supp. 2d 193, 208 [S.D.N.Y. 2010] [finding that a unilateral placement was appropriate even where the private school reports were alleged by the district to be incomplete or inaccurate and finding that the fault for such inaccuracy or incomplete assessment of the student's needs lies with the district]; see also Application of the Dep't of Educ., Appeal No. 21-194; Application of the Dep't of Educ., Appeal No. 20-131; Application of the Dep't of Educ., Appeal No. 18-125; Application of a Student with a Disability, Appeal No. 180-049; Application of a Student with a Disability, Appeal No. 15-076; Application of a Student Suspected of Having a Disability, Appeal No. 15-038; 17 Application of a Student with a Disability, Appeal No. 14-033; Application of a Student with a Disability, Appeal No. 14-028; Application of a Student Suspected of Having a Disability, Appeal No. 14-003; Application of the Dep't of Educ., Appeal No. 13-198; Application of the Dep't of Educ., Appeal No. 13-072; Application of a Student with a Disability, Appeal No. 12-027
[22] Gagliardo, 489 F.3d at 115, citing Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26-27 (1st Cir. 2002)
[23] Frank G., 459 F.3d at 364.
[24] Frank G., 459 F.3d at 363-64 (quoting, Burlington, 471 U.S. at 374).
[25] U.S.C. § 14129(a)(10)(C)(iii)(I); see 34 CFR 300.148(d)(1)
[26] Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 (1st Cir. 2004).
[27] Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 (1st Cir. 2004); Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 (6th Cir. 2003); Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 (1st Cir. 2002); see Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68).
[28] S.W. v New York City Dep't of Educ., 646 F. Supp. 2d 346, 361-63 (S.D.N.Y. 2009).
[29] Bd. of Educ. of Yorktown Cent. Sch. Dist. v C.S., 990 F.3d 152, 171 (2d Cir. 2021).
[30] See 20 U.S.C. § 1412(a)(10)(C)(iv); 34 C.F.R. § 300.148(e)(1)