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CASE NUMBER: 574418 - NYC: 227286
AMENDED FINDINGS OF FACT AND DECISION
Case Number: 227286
Student’s Name: Redacted (“Student”)
Date of Birth: Redacted
School District: NYC DOE
Hearing Requested by: Redacted (“Parent(s)”)
Redacted Request Date/Date Complaint Filed: 7/1/2022
Date(s) of Hearing: 3/30/2023
Actual Record Closed Date: 5/8/2023
Date of Decision: 5/17/2023
Hearing Officer: Daniel M. Hochbaum
INTRODUCTION
This is a decision in a hearing under the Individuals with Disabilities Education Act (“IDEA”). This case concerns Student, a [REDACTED]-year-old who attends the Private School (“Private School”). Ex. A:1, 3. In the Parents’ Due Process Complaint (“DPC”), the Parents alleged that the Department of Education (“DOE”) failed to provide the Student a Free Appropriate Public Education (“FAPE”) for the 2022-2023 school year. Ex. A.
The Parents are requesting an award of tuition for Student’s attendance at the Private School for the 2022-2023 school year. Id at 3. The Parents also seek an award of compensatory services, transportation, and other relief as I deem just and equitable. Ex. A:3.
As discussed below, I find that the DOE denied the Student a FAPE for the 2022-2023 school year.
I find that the Private School offers the Student specially designed instruction sufficient to meet the Student’s needs, and the equities support the Parents’ request for payment of tuition for the 2022-2023 school year. I further find that transportation (should the Parents decide to use it) and a new IEP meeting are warranted.
PROCEDURAL HISTORY
The Parents filed this case on 7/1/2022.[1] Ex. A:1. The DOE appointed another Impartial Hearing Officer to the case on 7/6/2022 but later appointed me on 3/6/2023. I conducted a Pre-Hearing Conference (“PHC”) with the Parties on 3/17/2023.
I held a hearing on 3/30/2023. Tr. 5. It was a closed hearing. The Parents were represented by Parents’ Attorney. Id. The DOE was represented by DOE Attorney. Id at 6. The Parents sought to enter into evidence exhibits A-P. Tr. 13-14. During the discussion regarding the admission of documents, I identified that the Parents were seeking to introduce two documents that they failed to include in their initial disclosure. Tr. 13-16. I provided the DOE time to review the documents, and the DOE attorney indicated that he consented to the admission into evidence of all of the Parent’s documents. Tr. 17-18. [2] The DOE entered into evidence one exhibit. Tr. 12. The DOE delivered a brief opening statement, did not call any witnesses, rested its case on the documentary evidence, and delivered a brief closing argument. Tr. 19, 20-21, 25, 97. The Parents’ Attorney delivered an opening statement. Tr. 22. The Parents’ attorney also called three witnesses to testify: the Summer Assistant Teacher[3] (Assistant Teacher), the Director of Clinical Affairs (“Director”), and the Student’s mother (“Mother”). Tr. 31, 55, 79. The DOE cross examined all three witnesses. Tr. 43, 72, 94. The Parents’ Attorney delivered an oral closing argument on the record. Tr. 97.
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 child who attends the Private School. Ex. A:1, 3. The Student is a twice exceptional child, meaning that he is gifted and has a disability. Tr. 83. Specifically, the Student is advanced academically, especially in reading and math, and has Autism and Attention Deficit Hyperactivity Disorder. Tr. 82.
The Student is very bright. Tr. 80. He learned to read at an extremely young age. Tr. 80. He reads voraciously and retains information at a very high level. Tr. 80. He has a lot of knowledge about different topics and is eager to share that knowledge with others. Tr. 62.
The Student has a variety of social difficulties. He is incredibly uncomfortable in social situations, has trouble reading social cues, and needs to be explicitly taught about how to relate to others in a stepby-step manner. Tr. 80. The Student has difficulty understanding the perspectives of others. Tr. 64, 87. The Student also has “a strong case of demand avoidance,” meaning that he will avoid directives that others give him. Tr. 81-82. According to the Mother, he has an “anxiety-based need for control,” and demands are triggering for him. Tr. 81. According to the school staff, he has cognitive rigidity and poor coping skills. Ex. L:2. These issues are so intense at times that the Student needs 1:1 support to regulate his emotions in order to enter the classroom and be with peers. Tr. 67.
The Student also has a variety of difficulties relating to his ADHD. The Student constantly moves and fidgets. Tr. 81. The Student has poor sustained attention and is highly distractible. Ex. L2; Tr. 62. It can be hard for the Student to attend to a task if there is something happening nearby. Tr. 62. The Student can become very fixated on something and then it can be very difficult to reorient him. Tr. 37. The Student is also impulsive. Tr. 38. As a result., the Student has needed 1:1 support in school to enter the building, put away his things, and transition to class. Tr. 36.
The DOE last held an IEP meeting for the Student on 7/21/2021. Tr. 85. At the meeting, the IEP team recommended an Integrated Co-Teaching (“ICT”) class for the Student for English Language Arts (“ELA”), Math, Social Studies, and Science and a variety of related services. Ex. 1:17. The IEP team also recommended a 10-month school year for the Student. Id at 18.
The Private School is a Kindergarten-12th grade school that specializes in serving students who are twice exceptional. Tr. 57, 58. The Private School offers 12-month services. Tr. 31. The Lower School serves 98 students total. Tr. 58 The Private School places 10 students in each class with 4 teachers. Tr. 58. Students at the Private School all have some cognitive gift. Tr. 56. The Private School serves students with challenges including social emotional difficulties, executive functioning challenges, and learning disabilities. Tr. 57. The Private School groups students in classrooms based on social needs, academic capability, and chronological age. Tr. 58.
The Private School’s model is to integrate instruction in socialization with challenging academics. Tr. 56. The Private School uses academic curricula that support higher level thinking and gifted education. Tr. 60. The Private school utilizes a “backbone” curriculum in its classes and then supplements it. Tr. 60-
61. A lot of the curricula that the school uses are multisensory. Tr. 61. The Private School uses curricula such as Singapore Math for math, and Zones of Regulation for its psychosocial instruction. Tr. 60-61. The Private School also provides related services, including Occupational Therapy (“OT”), Speech Therapy, and Counseling. Ex. E:19-21.
The staff at the Private School have a range of backgrounds including in psychology, social work, speech-language pathology, and occupational therapy. Tr. 59. Some of the staff are state certified special education teachers while others are not. Tr. 72-73. The Private School provides professional development for the staff including 2-3 weeks of training before the school year begins on the different methodologies the school uses, various professional development days throughout the year when students do not attend, trainings during the half day on Friday after students are dismissed, and a 3-day conference during the year related to teaching twice exceptional students. Tr. 59-60.
The 2022-2023 school year is the Student’s second year at the Private School. Tr. 71-72; 84. The Parents sent a letter to the DOE on 6/17/2022 stating that the DOE had not developed an appropriate IEP for the Student and explaining that they intended to enroll the Student at the Private School for the 2022-2023 school year if they did not receive a “legitimate offer” of a Free Appropriate Public Education (“FAPE”). Ex. C:1. The DOE did not introduce any evidence of its response to this letter. Tr. 9-10, 20-21. The DOE did not develop a new IEP for the Student at any time between the date of the letter and the hearing. Tr. 22, 90. The Parents enrolled the Student at the Private School for the 12-month 2022-2023 school year. Tr. 86.
CONCLUSIONS OF LAW AND ANALYSIS
This case mainly concerns the Parents’ request that the DOE pay for the Student’s tuition to the Private School for the 2022-2023 school year. When a parent believes that a school district has failed to provide a student with a FAPE, a parent may unilaterally enroll the child in a private school and seek tuition payment from the school district by filing a due process complaint. Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 376 (2d Cir. 2014) (quoting Reyes ex rel. R.P. v. New York City Dep’t of Educ., 760 F.3d 211, 215 (2d Cir. 2014)). The due process complaint may address “any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education.” 20 U.S.C. § 1415(b)(6)(A).
A district must pay for the cost of a student’s tuition at a private school if the three prongs of the Burlington/Carter test are met: (1) the DOE denied the student a FAPE; (2) the private placement is appropriate; and (3) the equities favor an order of tuition. See Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 367 (1985); Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12-15 (1993).
In IDEA due process hearings in New York, school districts have the burden of proof – including the burden of production and burden of persuasion – 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. NY Educ. Law § 4404(1)(c)).
A. Prong I
The IDEA states that children with disabilities are entitled to a Free Appropriate Public Education (“FAPE”). 20 U.S.C. § 1400 (d)(1)(A). In order to provide a Student with a FAPE, a school district must develop an Individualized Education Program (“IEP”) that consists of specialized instruction and related services designed to meet a student’s unique needs and must then implement the services in the IEP. 34 C.F.R. § 300.13. The law states that a school district offers 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 the DPC, the Parent alleged that the DOE denied the Student a FAPE by failing to develop an IEP for the 2022-2023 school year and failing to recommend 12-month/Extended School Year (“ESY”) services for the Student for 2022-2023. Ex. A:1-3. The Parents also made a variety of procedural and substantive allegations regarding the 7/21/2021 IEP meeting and resulting IEP. Id.
The DOE denied the Student a FAPE when it did not develop a new IEP on or before 7/21/2022, when the previous IEP expired. Tr. 22, 90. A local educational agency (“LEA”) is required to review a child’s IEP “periodically, but not less than annually.” 34 C.F.R. § 300.324(b)(1)(i). Additionally, the LEA is required to have an IEP in effect for every student with a disability “[a]t the beginning of each school year.” 34 C.F.R. § 300.323(a). In this case, the DOE did not review the IEP at the one year mark. Tr. 22,
90. Additionally, the DOE did not have a valid (i.e., non-expired) IEP in effect for the Student at the start of the 10 month school year in September 2022. Id. As a result, the DOE denied the Student a FAPE.
The DOE also failed to carry its burden of showing that the Student did not require 12-month services in order to receive a FAPE. According to the IDEA’s regulations, ESY services are: special education and related services that – (1) Are provided to a child with a disability – (i) Beyond the normal school year of the public agency; (ii) In accordance with the child’s IEP; and (iii) At no cost to the parents of the child; and (2) Meet the standards of the SEA.
34 C.F.R. § 300.106. ESY services must be provided “only if a child’s IEP Team determines, on an individual basis, in accordance with §§ 300.320 through 300.324, that the services are necessary for the provision of FAPE to the child.” Id. In New York, “[g]enerally, a student is eligible for a 12-month school year service or program ‘when the period of review or reteaching required to recoup the skill or knowledge level attained by the end of the prior school year is beyond the time ordinarily reserved for that purpose at the beginning of the school year.’” Application of a Student with a Disability, Appeal No. 22-112 (citing “Extended School Year Programs and Services Questions and Answers,” VESID Mem. (Feb. 2006), available at http://www.p12.nysed.gov/specialed/applications/ESY/2014-QA.pdf.
First, the DOE failed to explain why it was appropriate for the IEP team to make a decision during summer 2021 about whether the Student needed summer services during summer 2022. While an IEP can last for up to a year, a student’s needs can change over the course of the school year, and the best data about whether a student requires ESY would be acquired closer to the summer at issue. Here, the DOE did not present any testimony justifying its choice to make a decision about ESY for the Student 11 months in advance, nor did it present any information indicating that the information it considered when it made the decision on 7/21/2021 was still valid by the start of ESY for summer 2022.
Second, the DOE failed to provide any information at all explaining or justifying the 7/21/2021 decision to deny the Student ESY services. In reviewing the IEP, the IEP simply notes that the Student will receive 10-month services. Ex. 1:18. The IEP does not provide any reasoning for the decision. Id at 18, 22. The DOE did not introduce a Prior Written Notice into evidence to explain the decision. Tr. 12. Additionally, the DOE did not call any witness from the IEP team to explain the decision. Tr. 19, 25. Therefore, the DOE failed to offer “a cogent and responsive explanation” as to why the Student did not need ESY and failed to carry its burden. Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. 386, 404 (2017).
By contrast, the Parents introduced evidence that the Student did, in fact, need ESY services. At hearing, the mother explained that the Parents enrolled the Student in 12-month services at the Private School because he “thrives on routine and he, what’s the word, he, he sinks when he doesn’t have a consistent routine, he just can’t handle it.” Tr. 86. Likewise, the Mother explained that the Student “backslides with social skills and he also just has a much har-, a much more difficult time staying selfregulated.” Tr. 86. Additionally, the Parent explained that when the Student participated in ESY programming at the Private School during summer 2022, he maintained skills like brushing his teeth and getting out the door to school, which she attributed to his need for a routine, structure, and consistency. Tr. 89-90. As a result, the weight of the evidence showed that the Student needed ESY services, and that the DOE denied the Student a FAPE when it failed to provide them for summer 2022.
As a result of the above, the DOE failed to offer the Student a FAPE for the 2022-2023 school year.
B. Prong II
A private school placement must be “proper under the Act.” Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370. This means that the Private School must offer an educational program which meets the student’s special education needs. See Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112, 115 (2d Cir. 2007); Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998). Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.” Gagliardo, 489 F.3d at 112 (“Subject to certain limited exceptions, ‘the same considerations and criteria that apply in determining whether the [s]chool [d]istrict’s placement is appropriate should be considered in determining the appropriateness of the parents’ placement.’” Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006).
Parents need not show that the placement provides every special service necessary to maximize the student’s potential. Frank G., 459 F.3d at 364-65. Instead, they need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a student with a disability, supported by such services as are necessary to permit the child to benefit from instruction. Gagliardo, 489 F.3d at 112 citing Frank G., 459 F.3d at 364-65. A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student. 20 U.S.C. § 1401(29); Educ. Law § 4401(1); 34 C.F.R. § 300.39(a)(1); 8 NYCRR § 200.1(ww); Hardison, 773 F.3d 386.
The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their 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. When determining whether a unilateral placement is appropriate, “[u]ltimately, the issue turns on” whether the placement is “reasonably calculated to enable the child to receive educational benefits.” Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115.
In this case, the Private School meets the Frank G. standard and “provides educational instruction specially designed to meet the unique needs” of the Student that will enable him to make progress. First, the Private School is appropriate because it is a school that specializes in serving students with the same needs as the Student. Second, the Private School is appropriate because it provides a small class ratio and groups the student with peers with similar needs. Third, the Private School provides the Student with individualized supports that are effective for him but is also capable of adapting to meet his needs. Fourth, the Private School is appropriate because it delivers a variety of school wide interventions that also enable the Student to learn. Fifth, the Private School is appropriate because it utilizes highly trained staff. Sixth, the Private School is appropriate because the Student is making progress at the school.
First, the Private School is appropriate under Prong II because it is a school that specializes in serving twice exceptional students. As discussed above, the Private School explicit mission is to serve students who are twice exceptional, meaning that they are gifted in one area and have a disability in another area. Tr. 56. In this case, the Student has academic gifts in reading and math and is diagnosed with Autism and ADHD, and is, therefore, twice exceptional. Tr. 67, 80, 82. Additionally, the core components of the school – an explicit social emotional curriculum, academics geared to gifted students, and related services – are features that the Student needs. Tr. 56, 59, 62. As the witnesses explained, the Student has tremendous challenges with social interactions and needs to be taught skills like how to participate in social situations and perspective taking, and the Private School provides that instruction. Tr. 63; Ex. E:16. The school also provides other supports, like a space in the classroom where the student can self-regulate when he needs to, that also support his individual disability-related needs and supplement the socialemotional curriculum. Tr. 39-40. Likewise, the Private School utilizes multisensory research-based curricula for academics and has even adapted its instruction to the Student by, for example, creating a 2student advanced math class for him and a peer based on his needs and abilities. Tr. 61, 67, 89. The Student also requires related services like speech therapy, OT (as mentioned on the IEP), and counseling (as also mentioned on the IEP), and the Private School provides the Student with these services. Tr. 64.
Second, the Private School is appropriate because it provides a small class ratio and groups the student with peers with similar needs. Small class sizes can be a factor weighing in favor of the appropriateness of the parent’s unilateral placement. Frank G., 459 F.3d at 365 (citing Knable v. Bexley City Sch. Dist., 238 F.3d 755, 768 (6th Cir. 2001)). Small class sizes at a unilateral placement “come[] within the IDEA definition of ‘special education,’ namely, ‘specially designed instruction . . . to meet the unique needs of a child.’” Frank G., 459 F.3d at 365 (citing 20 U.S.C. § 1401(29)). The Private School provides a small class size of 10 students to 4 teachers. Tr. 58. This is important for the Student because he often needs 1:1 support from an adult to remain regulated or re-regulate so that he can enter the classroom and be with peers, and the small ratio allows the Private School to support him in this way. Tr.
66. At hearing, the Assistant Teacher explained that the Student would be overlooked if he were in a class of 20 students to 2 teachers, but that is not the case at the Private School. Tr. 40. Additionally, the Private School is appropriate because it groups the Student with peers who are similar based on social ability, academics, and age. Tr. 58-59. This is important so that the topics the class covers are relevant to his needs and so that the level of instruction is not too high or too low for him so that he can participate and learn. As a result, the small class ratio and peer grouping are factors that weigh in favor the Private School’s appropriateness under Prong II.
Third, the Private School provides the Student with individualized supports that are effective for him and is also capable of adapting to meet his needs. When a teacher at the unilateral placement adapts instruction (for example, working one-on-one with the student, creating a communications book, giving the student extra time to complete work, allowing the student to work in isolated areas of the classroom, adapting tests to allow the student to take them orally), these factors weigh in favor of the appropriateness of the parent’s unilateral placement. Frank G., 459 F.3d at 365-66. Here, the Private School has adapted its instruction for the Student in at least three ways. First, recognizing that the Student needs a lot of social emotional support to even enter the classroom and be with peers, the Private School has provided him with necessary 1:1 support from a teacher to facilitate this. Tr. 63. Second, the Private School has provided him with materials like a whiteboard to aid his learning. Tr. 67-68. As the Director explained, the Student uses this adaptative tool to write down his thoughts and questions throughout the day and it has, in turn, allowed him to better stay with the class physically (rather than leaving the room) and better engage with the content they are learning. Tr. 67-68. Third, as mentioned above, the school has also adapted the math curriculum for the Student by creating an advanced math class for just the Student and one other peer. Tr.
68. As such, the Private School adapts to meet the needs of the Student which contributes to its appropriateness under Prong II.
Fourth, the Private School is appropriate because it delivers a variety of school wide interventions that also enable the Student to learn. As the Director explained, the Private School uses a school-wide Positive Behavior Intervention Strategy in which all students can earn points for positive behavior that they can then exchange for tangible or experiential prizes. Tr. 65. The Assistant Teacher explained that this system was effective for the Student because he was interested in certain books and was able to earn those books with good behavior. Tr. 40. The Private School also uses techniques like a visual schedule of the day and structured transition times which are important for the Student in light of his need for routines. Tr. 65, 87. The Private School explained that these interventions are effective for the student because he struggles with ambiguity and the structure of these systems provide very clear guidelines and remove the ambiguity for the Student. Tr. 66. While these interventions are school-wide, they are effective for the Student based on his disabilities, and therefore also support a finding that the Private School’s program is appropriate for the Student based on his needs.
Fifth, the Private School is appropriate because it utilizes highly trained staff. At the hearing, the Director testified that the faculty at the school come from a range of backgrounds including special education, psychology, social work, occupational therapy, and speech-language therapy. Tr. 59. Additionally, all of the related service providers either hold a license in their respective fields or are working toward that license and are supervised by a licensed individual. Tr. 73. Additionally, the Private School provides extensive professional development for the staff to ensure that they are able to meet the needs of the Student. This includes 2-3 weeks of training before the school year begins on the different methodologies the school uses, various professional development days throughout the year when students do not attend, trainings during the half day on Friday after students are dismissed, and a 3-day conference during the year related to teaching twice exceptional students. Tr. 59-60. Finally, while the DOE cross examined the witnesses from the school about whether the teachers at the school held state certification and the testimony revealed that some were and some did not (Tr. 72-73), the law in this circuit is that “a private placement need not provide certified special education teachers or an IEP for the disabled student.” Frank G., 459 F.3d at 364. As a result, I find that the Private School has sufficiently trained staff to provide “educational instruction specially designed to meet the unique needs” of the Student.
Sixth, the Private School is appropriate because the Student is making progress at the school. As the Parent explained, the Student previously had a lot of anxiety related to school and the school environment, but when he started at the Private School, his anxiety “dropped from like ten to a two” because “he finally found kids that he could relate to, [and] teachers that could see him for who he was and could support him.” Tr. 85. The Student has also made other progress including participating in class more, joining the group of his peers (despite his high levels of social anxiety), sharing more information with peers, and building more social connections. Tr. 70-71. The Student has also become better about talking about the perspectives of others and, for example, recently learned about a peer’s interest and then wanted to research that topic so that he could make a social connection with that peer. Tr. 70-71. The school progress notes also added the following:
[the Student ] has made gains with his goal to use full body listening; showing he is thinking of the other person, making eye contact and maintaining a calm body.
He has further demonstrated this by increasingly raising a calm, quiet hand when he wants to be called on, more independently than seen in the first few weeks of the summer. Finally, [the Student] has shown progress in using strategies to sustain attention for at least 20 minutes, before deviating to his own plan.
Ex L:2. Additionally, the record contains extensive information about his academic abilities and progress in the curriculum, including in reading, math, English, Investigative social studies, and science. Ex. N:7-
9. Therefore, the Student is making progress at the Private School, and this is one factor among others that contributes to a finding that the Private School is appropriate for the Student for the 2022-2023 school year.
At hearing, there were two other issues related to the Private School’s summer instruction that I must address. First, the DOE argued that the Private School was inappropriate because of a lack of academics during the summer. Second, two witnesses referred to the summer program as a “camp.” For the reasons below, I find that neither issue detracts from the Private School’s appropriateness under Prong II.
During cross examination of the Assistant Teacher, the DOE raised the issue of whether the Student received academic instruction during the summer. The Parties stipulated to the fact that the Student’s summer schedule did not have “reading, writing, or arithmetic” on the schedule. Tr. 45-46. I reject the DOE’s intimation that the lack of academic courses makes the Private School inappropriate for four reasons. First, the Student requires 12-month services, and the Private school provides the Student with plenty of academic instruction during the 12-month school year. There is no pedagogic or other reason to view the summer as a distinct part of the school year for a 12-month student. Instead, the school year is one indivisible period for all students, regardless of whether they are 12-month students or 10-month students. Second, there is no reason why the Private School could not prioritize intensive social emotional instruction during the first part of the school year and layer on academics as the year progressed. In fact, the Student needed this intensive social emotional instruction just to be able to enter the classroom and remain in the classroom, and the social emotional support at the beginning of the 12-month year appears to have made him more available for learning later in the school year, as evidenced by his academic engagement and progress in the progress report. Tr. 70-71. Third, the record showed that the Student did engage in reading and writing during the summer. Tr. 37, 47. Fourth, while I reject this reasoning, if anything, this issue might go to the equities and serve as a potential basis to reduce the tuition award rather than find the entire program inappropriate on account of the first two months of the school year.
While the DOE did not raise this issue, I note that two witnesses referred to the summer programming as a “camp.” Tr. 32, 37, 43. However, the testimony showed that the summer was a “continuation of the school year,” and that the teachers simply referred to the summer as “camp” for the benefit of the students. Tr. 48-49. Ultimately, the witnesses explained that the program was still structured as a school day. Tr. 49. As such, the use of the term camp did not make the program inappropriate as a whole.
The weight of the evidence establishes that Student’s individual special education needs were (and are) addressed by the Private School, and that the instruction offered there was “reasonably calculated to enable the child to receive educational benefits.” Frank G., 459 F.3d at 364. As a result of the above, I find that Parent has satisfied her burden in proving that the Private School offered an educational program which met Student’s needs under Prong II of the Burlington/Carter standard.
C. Prong III
Under the third and final prong of the Burlington/Carter test, courts consider “equitable factors” relevant to an order of tuition. Gagliardo, 489 F.3d at 112. “[A] major consideration in deciding whether the third factor is satisfied is whether the parents have cooperated with the [Department] throughout the process to ensure their child receive[s] a FAPE.” Bettinger v. New York City Bd. Of Educ., 2007 WL 4208560, at *6 (S.D.N.Y. Nov. 20, 2007). Specifically, equitable considerations include the parents’ participation in IEP meetings, visits to the proposed school placements, and notification of their unilateral placement decision to the DOE. See D.A. v. New York City Dep’t of Educ., 769 F. Supp. 2d 403, 419-20 (S.D.N.Y. 2011).
I find that the equities support an award of full tuition because the Parent cooperated with the DOE at every stage of the special education process. In this case, there was no IEP meeting for the 2022-2023 school year, but the Parents participated in the IEP meeting that the DOE held in 2021. Tr. 85. On 6/17/2022, the Parent sent the DOE a letter explaining that the DOE did not develop an IEP for the Student, that they wanted an IEP, and that the Student should receive 12- month services. Ex. C. The Parent sent this letter the required ten days before unilaterally placing the Student at the Private School. Id.; 34 C.F.R. § 300.148(d)(1)(ii). Additionally, the Parent testified about her openness to placing the Student in a public school, but that the DOE never developed an IEP or offered any school, let alone an appropriate school, for the Student to attend for the 2022-2023 school year. Tr. 90-91. By contrast, the DOE was not equal partner in the Student’s education and did not cooperate with the Parent. The DOE failed to hold an IEP meeting, failed to offer a school placement, and failed to respond to the Parent’s Ten Day Notice letter.
The Parent’s signed an enrollment contract that requires them to pay tuition to the Private School. Ex. G:6. While the Parents signed the contract in February 2022, before any IEP meeting would have occurred, the contract contained a withdrawal clause which allowed the Parents to withdraw the Student and only incur a minor penalty if the DOE offered an appropriate placement. Ex. G:2. As such, the timing of the Parent’s signing was appropriate and does not serve as a basis for reducing the tuition award.
The record reflects that the tuition for 10-month school year was $92,348.00 (Ex. G:2) and the tuition the Parent’s paid for the Extended School Year session was $14,112.50 (Ex. H:1). I find these costs to be reasonable.
After considering the record at hearing, I find that the equities support Parent’s claim for the cost of tuition and as outlined below, I order the DOE to fully fund the Student’s tuition to the Private School for the 2022-2023 school year.
D. Discussion of Other Issues
In the DPC, the Parent requested the following relief in addition to an award of tuition: an award and implementation of specialized transportation, related services, compensatory services, attorney fees, and any additional relief the IHO may deem just and equitable.
Regarding transportation, I find that transportation is appropriate should the Parents decide to use it. Transportation is a related service under the IDEA. 34 C.F.R. § 300.34. It would be inequitable to award tuition to the Private School but not offer transportation for the Student to attend. However, at hearing, the Parent testified that she currently transports the Student to the Private School and was unsure whether the family was ready for the Student to utilize district-provided transportation. Tr. 93. Nevertheless, the Parents should have the option of utilizing the transportation should they wish to, and I order that it be provided if the Parents request it as outlined below.
I decline to order any related services beyond those provided at the Private School. As discussed above, the Student is receiving speech therapy, OT, and counseling at the Private School. As a result, the award of tuition will ensure that the Student receives related services, and no other related services are necessary.
Regarding compensatory services, I also decline to award any compensatory services. A hearing officer may award compensatory education relief in the form of supplemental special education or related services when there has been a denial of FAPE. See P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008). Compensatory education can serve as a “replacement of educational services the child should have received in the first place,” and any award “should aim to place disabled children in the same position they would have occupied but for the school district’s violations of IDEA[.]” Reid v. Dist. of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005); see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008) (holding that “[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act”). In this case, although the DOE denied the Student a FAPE by failing to develop an IEP, I find that the award of tuition is appropriate to remedy the violation, and no additional compensatory services are needed.
Finally, regarding fees, it is well settled that an IHO may not award attorney’s fees, and that a federal district court may award attorneys’ fees as part of the costs to a “prevailing party.” 20 U.S.C. § 1415(i)(3)(B)(i); 34 C.F.R. § 300.517(a)(1)(i)).
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby ordered: (1) The DOE shall, within 15 days of this Order, assign an individual from its Impartial Hearing Order Implementation Unit (IHOIU) to serve as a contact person for the Parent regarding the implementation of this Order. The IHOIU contact person shall provide their name, direct phone number, and email address to the Parent and the Parent’s attorney within 15 days of the date of this Order. The contact person shall respond to any inquiry by the Parent (or her attorney) concerning the implementation of this Order within 2 business days.
(2) The DOE shall, within 35 days of the date of this Order, reimburse the Parent $106,460.50 for the full cost the Student’s tuition to the Private School for the 2022-2023 school year. The DOE shall not require the Parent to submit any documentation that is not in the hearing record in order to reimburse the Parent.
(3) Within 5 days of receipt of a written request from the Parents to the IHOIU, the DOE shall provide roundtrip transportation to and from the school.
SO ORDERED.
DATED: 5/17/2023
/s Daniel M. Hochbaum
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.
APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD
PARENT EXHIBITS
A. Due Process Complaint 6/27/2022 4 pages
B. Individualized Education Program (IEP) 7/22/2021 18 pages
C. Ten-Day Notice 6/17/2022 1 page
D. Private School Summer Program Description 2022-2023 3 pages
E. Private School Program Description 2022-2023 24 pages
F. Program Enrollment Agreement 5/16/2022 Summer 2 pages
G. Enrollment Contract 4/19/2022 6 pages
H. Affidavit of Summer Program Tuition Payment 8/16/2022 1 page
I. Affidavit of Tuition Payment 10/11/2022 1 page
J. Program Schedule 2022 Summer 1 page
K. Class Schedule for 2022-2023 School Year 2022-2023 1 page
L. End of Summer Report 2022 9/08/2022 - 8/12/2022 12 pages
M. Academic Progress Report 11/07/2022 3 pages
N. Report Cards 2022-2023 Fall 2022 13 pages
O. Letter of Attendance Record for Summer 2022 8/15/2022 1 page
P. -2023 Attendance Letter 3/20/2023 Fall 2022 1 page
DOE EXHIBITS
1. Individualized Education Program (IEP) 7/21/2021 24 pages DOE
IHO EXHIBITS
I. N/A N/A N/A
Footnotes
[1] The Parents’ DPC lists 6/26/2022 as the date of letter. The Exhibit List lists the date of the DPC as 6/27/2022. Regardless, the New York State Education Department’s (NYSED) tracking system states that the case was actually filed on 7/1/2022.
[2] A detailed list of the admitted exhibits is attached as Appendix B, “Documentation Entered Into the Record,” to this decision.
[3] The Parents’ attorney initially listed the Director of the Private School Summer Program as a witness on the witness list. At hearing, the Parents’ attorney asked to substitute the Assistant Teacher in place of this Director. The DOE consented to this witness substitution. Tr. 20.