New York City Department of Education, Impartial Hearing Decision

Case Number: 574380 – NYC: 227251

FINDINGS OF FACT AND DECISION

Student’s Name: [REDACTED] (“Student”)

Date of Birth: [REDACTED]

School District: [REDACTED]

Hearing Requested by: Parents “Parent(s)”

Request Date/Date Complaint Filed: June 30, 2022

Actual Record Closed Date: May 3, 2023

Date of Decision: May 7, 2023

Hearing Officer: Harriet Gewirtz

INTRODUCTION AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parent’s Due Process Complaint (“DPC") filed on or about June 30, 2022.

On June 30, 2022 , the parent (the “Parent”) of [REDACTED] (the “Student”) filed a due process complaint under the Individuals with Disabilities Education Act (the “IDEA”) [20 U.S.C. section 1415(f)] and Section 4404(1) of the New York State Education Law against the New York City Department of Education (the “DOE”). I was appointed as impartial hearing officer (“IHO”) on July 7, 2022.

Lists of the documentary evidence submitted are appended to this Order.

JURISDICTION

The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.

BACKGROUND

[REDACTED] is a [REDACTED] year-old student who is classified as a student with a disability. His classification and eligibility for special education supports and services are not in dispute. The Parents unilaterally placed the Student at the [REDACTED], “[REDACTED]” for the 2022-2023 school year. The Parents now seek tuition reimbursement for the cost of the [REDACTED] for the 2022-2023 school year placement, inter alia, supplemental 1:1 ABA instruction (up to 16 hours per week) for the 12-month 2022-2023 school year. The Parents maintain that the DOE failed to offer the Student an appropriate program and placement for the 2022-2023years, and thus failed to offer him a free appropriate public education (“FAPE”). The Parents further maintain that the [REDACTED] placement is appropriate and that equitable factors support the tuition reimbursement claim.

The DOE does not assert that it provided the Student with a FAPE, presented no witnesses, nor a documentary evidence package, and submitted a closing brief.

The Parents presented three witnesses, submitted a documentary evidence package and a closing brief.

FINDINGS OF FACT AND DECISION

The IDEA provides that children with disabilities are entitled to a Free Appropriate Public Education ("FAPE") (20 U.S.C. § 1400 [d][1][A]. A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”) (34 C.F.R. § 300.13). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances” Endrew F. v. Douglas County Sch. Dist. RE-1, No 15-827, 2017 WL 1066206, 137 S.Ct. 988, 69 IDELR 174 (U.S. Mar 22, 2017).

Decisions of impartial hearing officers must be on substantive grounds based on a determination of whether a the student received a FAPE, 8 NYCRR § 200.5(j)(4)(i), except as follows:

In matters alleging a procedural violation, an impartial hearing officer may find that a student did not receive a free appropriate public education only if the procedural inadequacies impeded the student’s right to a free appropriate public education, significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of a free appropriate public education to the parent’s child, or caused a deprivation of educational benefits. Nothing in this paragraph shall be construed to preclude an impartial hearing officer from ordering a school district to comply with procedural requirements under this Part and Part 201 of this Title 8 NYCRR § 200.5(j)(4)(ii).

School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement ( NYS Educ. Law § 4404(1)(c)).

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 G. and Dianne G. 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 G.,2007 WL 2982269 [Oct. 15, 2007].

The Parents raised multiple challenges to the committee on special education (“CSE”) program and placement recommendations. The DOE did not present witnesses or evidence in this case. The Supreme Court has found that “[a] reviewing court may fairly expect those authorities [school district staff] to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” Endrew F. v. Douglas County School District, 137 S. Ct. at 1002 (2017). The DOE failed to offer a cogent and responsive explanation, for the CSE’s program and placement recommendations. The DOE has, therefore, not met its burden of proof in this proceeding. The Parents have therefore met the first of the three Burlington/Carter criteria for tuition reimbursement.

The Parents have the burden of proving that the unilateral placement was appropriate. In order to meet this burden, the Parents must establish, by a preponderance of the evidence, that the unilateral placement provides “educational instruction specifically designed to meet the unique needs of the student” (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 [2d . Cir. 2007]. However, the private school placement “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements” (Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d. Cr. 2006]. The private placement need not provide certified special education teachers or an IEP. Parental placements are not subject to the same mainstreaming requirements as a school district placement. The private school placement must be reasonably calculated to enable the child to receive educational benefits, and must be likely to produce progress, not regression.

The standard to apply is whether "[the] unilateral private placement ... provides educational instruction specifically designed to meet the unique needs of a handicapped child" Gagliardo, 489 F.3d at 115):

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).

The DOE did not challenge the Parents’ contention that the [REDACTED] placement was an appropriate program and placement for the Student. The Parents presented extensive testimony and submitted substantial documentary evidence in support of their position that the [REDACTED] placement was appropriate. (Parent Exs C-H) The testimony of the Parents’ witnesses, (Ex N-P),(which was uncontroverted) and the Parents’ documentary evidence established that [REDACTED] placement was appropriate and has been providing the Student with educational instruction that is specifically designed to meet the Student’s unique special education needs, supported by such services that are necessary to permit her to benefit from instruction.

The Parents have therefore met the second of the three Burlington/Carter criteria for tuition reimbursement.

The determination of whether or not equitable factors support a parent’s claim for tuition reimbursement hinges, in large part, on whether or not the parent cooperated with the CSE. The DOE did not raise any issues that would limit or preclude tuition reimbursement. In fact, it did not oppose tuition reimbursement on equitable grounds. Moreover, the testimony and documentary evidence make clear that the Parents cooperated with the CSE and provided the DOE with appropriate and timely written notice (Ex B).

Based on the foregoing, I find that equitable factors support the Parents’ claim for tuition reimbursement for the 2022-2023 school year. The Parents have therefore met the third of the three Burlington/Carter criteria for tuition reimbursement. Having met all three of the Burlington/Carter criteria, the Parents are entitled to reimbursement for the cost of the Student’s 2022-2023[REDACTED] placement and the transportation to the program.

The cost of the Student’s 2022-2023 program at [REDACTED] is $150,000.00.

The Parent request that the DOE to reimburse them for tuition at [REDACTED] for the 12-month 2022-2023 school year, and that the Student continue to receive transportation is granted.

ABA THERAPY AND ABA SUPERVISION.

[REDACTED] testified that (1) the at-home ABA provider assists with the Student’s behavioral challenges in order for him to derive an educational benefit, and (2) that at-home ABA services also support generalization of skills, to include “multiple opportunities to practice new skills in school, at home and in the community, including self-care skills that are not typically performed in school (e.g., bathing and dressing).” Ex. R.

The provision of FAPE itself does not require a school district to design an educational program intended to address a student's difficulties in generalizing skills to other environments outside of the school environment, particularly in cases in which it is determined that the student is otherwise likely to make progress in the classroom (see, e.g., F.L. v. New York City Dep't of Educ., 2016 WL 3211969, at *11 [S.D.N.Y. June 8, 2016]; L.K. v. New York City Dep't of Educ., 2016 WL 899321, at *8-*10 [S.D.N.Y. Mar. 1, 2016], aff'd in part, 674 Fed. App'x 100 [2d Cir. Jan. 19, 2017]; P.S. v. New York City Dep't of Educ., 2014 WL 3673603, at *13-*14 [S.D.N.Y. Jul. 24, 2014]; M.L. v. New York City Dep't of Educ., 2014 WL 1301957, at *11 [S.D.N.Y. Mar. 31, 2014]; see also Thompson R2-J Sch. Dist. v. Luke P., 540 F.3d 1143, 1152-53 [10th Cir. 2008]; Gonzalez v. Puerto Rico Dep’t of Educ., 254 F.3d 350, 353 [1st Cir. 2001]; Devine v. Indian River County Sch. Bd., 249 F.3d 1289, 1293 [11th Cir. 2001]; JSK v. Hendry County Sch. Bd., 941 F.2d 1563, 1573 [11th Cir 1991]). Otherwise, such programming must offer an educational benefit as provided in Frank. G, 459 F.3d at 364-65.

The Parent cannot have it both ways. The Parent cannot claim on the one hand that the [REDACTED] is an appropriate placement but the Student requires further services to benefit from the school the Parent unilaterally chose. Therefore, any claims other than tuition reimbursement are denied.

ORDER

IT IS HEREBY ORDERED that the New York City Department of Education is directed to directly fund/reimburse the cost of the Student’s 2022-2023 program at [REDACTED] not to exceed a total of $150,000.00, to be paid within 45 days of submission of proof of payment, transportation is to continue to be provided for the Student to and from the program.

Dated: May 7, 2023

Harriet Gewirtz-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 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.

For the Student:

[REDACTED], ESQ., Attorney

[REDACTED], Parent Student

For the Department of Education:

[REDACTED], ESQ., Attorney

PARENT EXHIBITS

B. 10-Day Letter w/ attachments & confirmation 06/15/22 15 03/10/23

C. NYC DOE Settlement Referral Letter 07/05/22 02 03/10/23

D. Correspondence Parent to CSE 02/08/22 03 03/10/23

E. Neuropsychoeducational Evaluation by Dr. [REDACTED] Dec. 2021 52 F Dr. [REDACTED] License & CV Undated 08 03/10/23 03/10/23

G. [REDACTED] ([REDACTED]) Enrollment Contract 04/25/22 18 03/10/23

H. [REDACTED] Program Description 2022-2023 01 03/10/23

I. [REDACTED] Class Schedule & Providers’ Information 202-2023 06 J [REDACTED] Calendar 2022-2023 02 03/10/23 K [REDACTED] Remote Learning Plan 2022-2023 03 03/10/23 03/10/23

L. [REDACTED] Attendance Records (up to February 2022) Mar. 2023 01 M [REDACTED] Providers Licenses & Certifications Undated 09 03/10/23 03/10/23

N. [REDACTED] Progress Report (Nov. 2022 – Feb. 2023) 02/17/23 16 03/14/23

O. [REDACTED] Progress Report (Jul. 2022 – Nov. 2022) 11/28/22 14 P [REDACTED] Functional Behavior Assessment (FBA) and Behavior Intervention Plan (BIP) 04/12/23, 07/07/22 16 Q [REDACTED] Resume & License Undated 03 04/12/23 04/12/23

R. Testimony Affidavit of [REDACTED] 03/30/23 12 04/12/23

S. [REDACTED] Updated Attendance Records 03/31/23 01 04/12/23

T. [REDACTED] Affidavit and Proofs of Payment 03/01/23 16 04/12/23

U. Testimony Affidavit of [REDACTED] 04/10/23 03 04/12/23

V. Testimony Affidavit of [REDACTED] 04-11-23 02 04/12/23

DOE EXHIBITS

None