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FINDINGS OF FACT AND DECISION
I. Introduction
This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (“IHO”) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (“IDEA”) and the New York State Education Laws. The School District will be referred to as District, the parent(s) as Parent(s) and the student will be referred to as Student.
II. Overview This is a “reimbursement” case. A board of education may be required to reimburse parents for their expenditures for private education services obtained for a student by his or her 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. 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, 369-70 (1985). The analytical framework for deciding a reimbursement case is typically called a three-prong analysis.
This case involves a demand for tuition reimbursement for the 2022-2023 school year (“SY”). The Parents filed the complaint notice on July 1, 2022. (Ex. A) I was appointed as the IHO on July 7, 2022. A hearing was held across multiple dates.[1] The Parents introduced exhibits A-O into the record and called three (3) witnesses: the at-home Special Education Teacher (“The Teacher”), the Head of School at The Private School, and the Parent/Mother. The District did not offer any exhibits, nor did they have any witnesses testify on their behalf.
a. Parents’ Position The Parents allege that the District failed to provide the Student a Free Appropriate Public Education (FAPE) for the 2022-2023 SY. (Ex. A-1). Specifically, the Parents claim that the Committee on Special Education’s (“CSE”) program recommendation “is not reasonably calculated to confer educational benefits on the student and therefore denied her a FAPE in the Least Restrictive Environment.” (Ex. B-2)
The Parents note that the Individualized Education Plan (“IEP”) was deficient “for multiple procedural and substantive reasons, some of which were raised and/or discussed at the IEP meeting.” (Ex. B-2). To remedy the above, the Parent seek reimbursement for the tuition costs associated with the unilateral placement of the Student at the Private School.
b. District’s Position The District did not present a Prong I case, introduce evidence, or bring any witness to testify on their behalf.
c. Background
of the Case On May 5, 2022, a CSE meeting was convened for an annual review of the Student’s IEP[2] for the Student. (Ex. B-2). The Parents responded on June 17, 2022, when they sent the District a ten-day notice letter[3] in which they rejected the recommendation and notified them of their intent to d. Student History The Student was [REDACTED] years old at the start of the 2022-2023 SY. She is described as a “sweet” girl who lives in a “supportive home with her parents and older brother.” (Ex. L-1). The Student has been diagnosed with Autism Spectrum Disorder (“ASD”) (Ex. L-1). During the 2022-2023 SY, the Student carried a disability classification of Autism.[4] (Ex. A-2).
The Parent’s placed the Student in a Private School that focuses on college preparation. The Private School adopts a student-centered philosophy that tailors an academic plan around each student to address both their academic strengths and weaknesses. (Ex. 2). Within the Private School, there is student’s current teacher from [the Private School], her current SETSS provider, and the parent, all of whom requested to include 1:1 intensive remedial instructions, social skills training, and other essential elements of the student’s current program in her IEP. The CSE representative ignored the request of the student’s parent and her service providers and supplanted the student’s current successful integrated program with an experimental placement in a self-contained special education class with 15:1 staffing ratio without any clinical justification. The CSE similarly ignored substantive reports demonstrating the student has made reasonable progress in her current lesser restrictive integrated special education program in the past two school years . . . In sum, the parent believes that the May 5, 2022 IEP is not reasonably calculated to confer educational benefits on the Student and therefore denied her a FAPE in the Least Restrictive Environment. . . . Based on the foregoing procedural and substantive violations, the parent intends to unilaterally enroll the student in the private special education program consisting of (I) 10 hours per week of after school SETSS between July 1, 2022 and June 30, 2023 and (II) placement in the [Private School] between September 6, 2022 and June 30, 2023 at public expense. (Ex. B. 2-3). a sub-program (“Program”) in which the Student was placed. The Private School describes the Program as follows:
[It] addresses students of average to superior intelligence, who have mild to moderate learning needs, and who can benefit from the school’s small classes and traditional liberal arts and fine arts educational focus. Such students may demonstrate processing, perceptual, or conceptual deficits that occur in visual, auditory, or motor functioning, in one or more of these areas affecting academic, social, and emotional growth. (Ex. E-2).
In the Student’s Private School Progress Report, the evaluator wrote that, “[the Student] has required constant monitoring and redirection in order to follow along with class instruction. She has become a flight risk and requires a teacher next to her at all times in class and the hallways.” (Ex. J-2). Academically, the report noted that the Student “has difficult with processing information.” She requires “constant guidance, prompting and the use of visual aids in consistently provided” as well as needing “manipulatives and model examples in order to be successful with assignments.” (Ex. J-4). Socially, the Student “struggles with neuro-typical behaviors.” The Student does not initiate conversation with her peers and has loud outbursts. (Ex. J-4). It is with this background that I now turn to the legal considerations of the IDEA.
e. Legal Overview The IDEA is a comprehensive statutory framework established by Congress to aid the states in providing disabled children with a FAPE. 20 U.S.C. § 612(a)(I). “A [FAPE] is available to all children with disabilities residing in the state between the ages of 3 and 21.” 20 U.S.C. § 612(a)(1)(A). The IDEA defines a FAPE as special education and related services that:
(A) have been provided at public expense, under public supervision and direction, and without charge, (B) meet the standards of the state educational agency, (C) include an appropriate preschool, elementary, or secondary school education in the state involved, and
(D) are provided in conformity with the individualized education program required under § 614(d) of this title. 20 U.S.C. § 601(9). [5] A FAPE is crafted through the collaboration of the disabled student’s parents, teachers, and school district administrators and is recorded in an IEP. 20 U.S.C. § 614(d). The “core of the statute … is the cooperative process that [IDEA] establishes between parents and schools.” Schaffer v. Weast, 546 U.S. 49, 53 (2005). The IEP is, in brief, a comprehensive statement of the educational needs of a disabled child and the specially designed instruction and related services to be employed to meet those needs. 20 U.S.C. § 601(14). In New York State, the IEP is produced by a CSE, whose members are appointed by the board of education or trustees of the school district. N.Y. Educ. Law § 4402(1)(b)(1) (McKinney Supp. 2005).
The IDEA provides numerous procedural safeguards to protect the due process rights of disabled children and their parents. See generally, 20 U.S.C. § 615. These procedures include the opportunity for parents to obtain an IEE of the child (20 U.S.C. § 615(b)(I)) and file a complaint with the state or local educational agency (20 U.S.C. § 615(b)(6)). Any such complaint is resolved through an “impartial due process hearing” in which parents of disabled children have “an opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a [FAPE] to such child.” 20 U.S.C. § 615(b)(6). Parties to an administrative proceeding under the IDEA have the right to written findings of fact and decisions on any complaint about the provision of a FAPE. Polera v. Board of Education Newburgh, 288 F.3d 478, 482 (2nd Cir. 2002).
III. Prong I
a. Did the District Present a Prima Facie Case?
i. Legal Standard
Procedural Standard Detailed procedural provisions lie at the heart of the IDEA. 20 U.S.C. §§ 612 and 615; 34 C.F.R. §§300.300-300.576; Evans v. Rhinebeck Central School District, 930 F. Supp. 83 (S.D.N.Y. 1996); B.E. R.R. v. State Bd. of Educ. 874 F.2d 1036, 1041 (5th Cir. 1989). In order to achieve the goal of providing all children with eligible disabilities with a FAPE, the IDEA statute requires that the states comply with “extensive procedural rights and safeguards” in order to receive federal funds for use in special education programs. See 20 U.S.C. § 615(a); LIH v. New York City Board of Educ., 33 IDELR 1 (E.D.N.Y. 2000); J.G. v. Board of Education of the Rochester City Sch. Dist., 830 F.2d 444, 445 (2d Cir. 1987).
In evaluating whether the District has complied with the procedural requirements of the IDEA, I consider whether the alleged procedural violation either 1) impeded the Student’s right to a free and appropriate public education, 2) significantly impeded the Parent’s opportunity to participate in the decision making process regarding the provision of a free and appropriate education, or 3) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); see also, Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp.2d 415, 419 (S.D.N.Y. Jan. 9, 2007), Application of a Child with a Disability, Appeal No. 07-007.
Substantive Standard IDEA requires an educational program reasonably calculated to enable a child to make progress appropriately considering the child's circumstances. Endrew F. v. Douglas Co. School Dist. Re-1, 137 S. Ct. 988 (2017). This obligation of the District is accompanied by the requirement to demonstrate the appropriateness of the program recommended by its CSE. (Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed Dept Rep 487 [1983]). To meet its burden, a board of education must be able to “. . . offer a cogent and responsive explanation for their decisions . . .” Endrew F., Supra.
ii. Analysis
I first look to the Parents’ allegations to determine the scrutiny to apply in evaluating the District’s presentation. The complaint notice was explicit about the following issues:
• The May 5, 2022 CSE review team was not duly constituted as it did not include all mandatory participants of the Student’s IEP. • The CSE did not have sufficient, reliable and current evaluative data in order to develop an appropriate program that accurately identified the Student’s academic and social/emotional needs, established annual goals and provided equitable special education and related services. • The CSE changed the Student’s educational placement without any objective and reliable evaluative data and without offering the Student individualized learning supports in the Least Restrictive Environment. • The IEP goals and objectives were impermissibly vague, overbroad, fail to specify address every area of the Student’s deficits and, for the goals that were present, failed to specify a baseline of functioning, actual targets to be achieved, or detail by what means the goal would be considered achieved. • The CSE failed to recommend the Student’s services on a twelve-month ESY basis despite clear and convincing evidence of substantial regression in skills during the interruption of services. • The outcome of the CSE review meeting was predetermined because the Student’s private special education program was not available on the continuum of the services and could not have been meaningfully considered nor recommended on the Student’s IEP. (Ex. A.3-4)
This is the backdrop in which I weigh the District’s recommendations, ever mindful that the District has the burden of proof. In New York State, “[t]he board of education or trustees of the school district or the state agency responsible for providing education to students with disabilities shall have the burden of proof, including the burden of persuasion and burden of production, in any such impartial hearing …” N.Y. Educ. Law § 4404 (1)(c), modifying the rule enunciated in Schaffer where “[t]he burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief.” Schaffer, 546 U.S. at 537.
The District conceded Prong I to the extent that they did not defend the/any recommended program or placement. L.O. v. N.Y. City Dep't of Educ., 822 F.3d 95, 111 2016 U.S. App. LEXIS 9239. There was no testimony indicating the nature of the CSE deliberations, or even if such deliberations occurred. Rather, I am left to speculate concerning the particulars of the review process, the rationale employed by the CSE members and the discussions that may or may not have contributed to a final recommendation. Further, given the myriad specific substantive allegations against the school, and the complete failure to defend, I find that the District fell short of their burden in this case.
iii. Conclusion
Upon review, I find that the District failed to demonstrate that they met their burden in providing the Student an IEP tailored to meet her individualized needs. I, therefore, rule for the Parents on Prong I.
IV. Prong II
a. Legal Issue: Did the Parents Establish the Appropriateness of the Private School?
i. Legal Standard
Having determined that the district failed to offer the student a FAPE in the LRE for the 2022-23 school year, the next inquiry focuses on whether the parent's unilateral placement of the student at the Private School was appropriate. On Prong II, New York federal courts have held that parental placements are “subject to fewer constraints than that applied to the school authorities.” Schreiber v. E. Ramapo Cent. Sch. Dist., 700 F. Supp 529 [S.D.N.Y. 2010] The Second Circuit has clearly stated:
. . . [P]arents 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 v. Arlington Cent. Sch. Dist., 489 F.3d 105 [2d Cir. 2007] quoting Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d Cir. 2006]
Moreover, parents "may not be subject to the same mainstreaming requirements as a school board." Frank G. v. Bd. of Ed. of Hyde Park [2d Cir. 2006] quoting M.S. v. Bd. of Ed. of City Sch. Dist. of Yonkers, 231 F.3d 96, 105 [2d Cir. 2000] citing Warren G. v. Cumberland County Sch. Dist., 190 F.3d 80, 84 [3d Cir. 1999] (holding that "the test for the parents' private placement is that it is appropriate, and not that it is perfect").
ii. Analysis
The Head of School at the Private School – Testimony The Head of School testified on the Parents behalf and provided a brief description of the Private School:
[The Private School’s] mission is to provide its students with an individualized learning environment allowing them to develop optimal academic skills commensurate with their intellectual potential. [The Private School] is a small school. It currently enrolls 175 students in total. There is only 1 class per grade (with the exception of Pre-kindergarten) with an average of a 10:1 teacher to student ratio. Each classroom is led by a (head) teacher who works collaboratively with a [Program] special education teacher, certified school counselor, speech language pathologist, and other professionals lowering the actual staffing ratio to approximately 2:1 and even 1:1 if needed and allowing for daily small group skill instruction and individualized attention. Most of the students are grouped according to their chronological age and corresponding grade level. Occasionally, a class may contain students who are identified according to level of functioning in one or more areas of instruction within the age range of approximately 12-18 months. (Ex. K.3-4).
During her testimony, she mentioned that “approximately 20% of the Students at the Private School present with learning disabilities, speech and language impairments, mild developmental delays associated with Autistic Spectrum Disorders and neurological disorders such as ADD or ADHD.” (Ex. K-5). To support these students, the Private School has a “fully integrated program providing students with necessary special education and related services within [the Private School’s] mainstream environment.” (Ex. K-5). The Head of School provided some insight into the specifics of the program: [The Program] offers daily 1:1 or small group academic remediation where a student is paired with a specialist based upon their personal learning profile.
These instructions are provided through a multi-sensory approach, within a structured learning environment in regular classes. In addition to daily academic remediation sessions, all [the Program] students receive daily 1:1 or small group tutorials the purpose of which is to assist with homework assignments and preparing for next day classes. [The Program] also provides related services of speech and language therapy, school-based counseling, and individual and group social skills training. Testing accommodations such as extended time or separate location, organizational and planning meetings are readily available as well. The principal goal of [the Program] is to equip disadvantaged students with skills necessary to access general education curriculum along with their typically developing peers. (Ex. K-5).
The specialized reading program is a distinguishing feature and a significant part of [The Program]. Students with considerable weakness in reading skills are seen individually by [The Program] instructors to help develop various comprehension strategies. The reading program supports individual fluency while fostering small group and whole class instruction to strengthen comprehension and written response skills. (Ex. K-6). [The Program] teachers utilize a multi-sensory teaching approach in addressing the needs of the students with significant academic delays. They push-in and pull-out throughout the school day in order to provide students with individualized supports and multi-sensory instructional strategies. These include but are not limited to: clarification of written instructions, explicit modeling, use of graphic organizers, verbal prompting and redirection, sentence frames, step by step modeling, defining new vocabulary words and visuals, oral rehearsal and identification of significant text details by highlighting key information and providing differentiated worksheets. (Ex. K-6).
The Head of School stated that she knows the Student and has reviewed her educational records.
(Ex. K-8). With respect to the Student’s specific program, the Head of School said the following:
. . . [The Private School] has been providing her with a small and highly structured educational setting with individual, multi-sensory and evidence-based teaching supports as was recommended in her IEP. (Ex. K-8). [The Student] has been appropriately grouped with [the Program] students by age range (ages and academic functioning levels falling within a span of 18-24 months). More important, the other students in [the Student’s] class are typically developing peers who provide her with positive role models and extensive mainstreaming opportunities. [The Student’s] academic, social and emotional skills are lower than the skills of the other students enrolled in her 11th grade class at [the Private School]. However, [the Student] has been able to maintain slow but steady progress as a result of consistent individualized support provided by [the Program] staff and her SETSS providers at home. [The Student] has the benefit of further mainstreaming opportunities when she attends classes which other high school students attend - such as Art, Gym, school trips (if scheduled), other activities and Lunch. While those classes are larger, they never exceed 15-
20 students. (Ex. K.8-9). The Head of School went on to demonstrate some of the ways in which the Private School has addressed some of the Student’s individual needs:
[The Student’s Program] instructor . . . sees her in 1:1 or in small group remediation sessions for two periods every day. She is providing [the Student] with multisensory, evidence-based reading instructions using the [ ] like methodologies. Her teaching instructions include clarification and paraphrasing of the text read, review and repetition of learned concepts, breaking down complicated reading materials in smaller segments, and helping [the Student] to use graphic organizers to plan and arrange ideas prior to writing short essays.
The instructor has also met with [the Student’s] outside SETSS providers to collaborate and ensure consistency between the school and the home-based programs. (Ex. K-9).
The Head of School testified that the Student made progress throughout the year, specifically in respect to her writing, although she continues to require 1:1 prompting, redirection, and monitoring. (Ex. K-9). To address her elopement, the Student has been receiving the support of a 1:1 paraprofessional. Additionally, through the Program, the Student receives speech and language therapy 3 times a week individually and in a group for 45 minutes and counseling 6 times per week in either a group or individual sessions. (Ex. K-10).
The Head of School concluded her testimony by discussing some of the ways in which the Student has benefited from the instruction provided by the Private School: [The Private School’s] integrated small class and the related services including 1:1 paraprofessional have been beneficial to [the Student] who has formed positive relationships with many of her classmates and has participated in different small group projects during which she initiates communications with other students. Such a class setting along with individualized supports and services delivered through [the Program] provide [the Student] with an appropriate and least restrictive learning environment. (Ex. K-11).
Our education team including the undersigned is optimistic that with sustained and consistent individualized academic program and services, [the Student] will continue to progress here and will be able to graduate one day with a regular high school diploma. (Ex. K-11).
Based on the foregoing, it is my opinion, to a reasonable degree of professional certainty, that the [the Private School] is an appropriate educational program for [the Student]. (Ex. K-11).
The Special Education Teacher – Testimony The Teacher began her testimony explaining that the Student’s parents employ her to provide 1:1 SETSS services to address academic, social, emotional, and behavioral delays the Student struggles with. She went on to explain the Student’s past performance at schools she attended prior to the Private School:
Prior to admission at [the Private School], [the Student] had attended the ASD [ ] program in a NYC public school from kindergarten through 6th grade. For grades 7th and 8th, the parent enrolled [the Student] in a private parochial school, [School Name Redacted], where she received 10 hours of SETSS and 1:1 paraprofessional support through her IESP. Despite receiving supplemental services, [the Student] had not made reasonable academic progress in the private school. [The Student] had to repeat the 8th grade in another private school, [School Name Redacted]. (Ex. M-3).
The Teacher explained that the Student requires “redirection, modeling, visual, visual prompting, graphic organizers, and other supports so that she can continue to make progress in all academic areas.” Without these the Teacher explains how the Student’s “self-directed and self-stimulatory behavior” interferes with her academic performance. (Ex. M-4). The Teacher concluded her testimony by stressing the importance of the Private School by explaining how the specialized programming and environment designed for the Student is essential to her continued progress. The Teacher has seen strides made by the Student since starting at the Private School, stating:
[The Student] continues to improve her social interaction skills in her integrated classroom at the [Private School]. Furthermore, she has improved in her ability to greet her therapists upon the start of SETSS sessions but requires frequent prompting and visual cue cards to encourage [the Student] to reciprocate a question and engage in a conversation. (Ex. M-5).
The Mother – Testimony The Mother testified that she feels as though the Private School has provided the Student with a “small and highly structured educational setting with individual, multi-sensory and evidence-based teaching supports as was recommended in her IEP.” (Ex. N-2). Further, the Mother went onto state the following:
I strongly believe that [the Private School] continues to be an appropriate program for my daughter. [The Student] benefits from the small group and 1:1 instruction and support alongside typically developing peers. She also receives supplemental services of speech therapy and counseling which help to control her behaviors and make her available for learning. Due to the recent spike in [the Student’s] behaviors in school – she clearly requires an additional support of 1:1 crisis management paraprofessional which was always on [the Student’s] IEP prior to the 2021-2022 school year. (Ex. N-4).
The remainder of her testimony focused on the finances involved in respect to the unilateral placement, which is not relevant to Prong II.
iii. Conclusion
In addition to considering the testimony and observations of the Head of School, the Special Education Teacher, and the Mother, I am mindful of the unique and complicated profile of the Student as outlined above in the “Student History” and is amplified throughout the record. To conclude, I agree with the statement of the Head of School that the Private School offers an “appropriate educational program for [the Student].” (Ex. K-11).
Thus, I find that the Private School provided educational instruction specially designed to meet the unique needs of the Student. I credit the Parents’ exhibits and witnesses for articulating the appropriateness of the placement in addition to the Student’s progress. The Parents have met their burden by establishing that such services were necessary to permit the Student to benefit from instruction. I, therefore, rule for the Parents for Prong II.
V. Prong III
a. Legal Issue: Did the Parents Cooperate with the District?
i. Legal Standard A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents where equitable considerations support the parents' claim (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, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192).
"Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148 6). The burden of proof
6 § 300.148 Placement of children by parents when FAPE is at issue.
(a) General. This part does not require an LEA to pay for the cost of education, including special education and related services, of a child with a disability at a private school or facility if that agency made FAPE available to the child and the parents elected to place the child in a private school or facility. However, the public agency must include that child in the population whose needs are addressed consistent with §§ 300.131 through 300.144.
(b) Disagreements about FAPE. Disagreements between the parents and a public agency regarding the availability of a program appropriate for the child, and the question of financial reimbursement, are subject to the due process procedures in §§ 300.504 through 300.520.
(c) Reimbursement for private school placement. If the parents of a child with a disability, who previously received special education and related services under the authority of a public agency, enroll the child in a private preschool, elementary school, or secondary school without the consent of or referral by the public agency, a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if the court or hearing officer finds that the agency had not made FAPE available to the child in a timely manner prior to that enrollment and that the private placement is appropriate. A parental placement may be found to be appropriate by a hearing officer or a court even if it does not meet the State standards that apply to education provided by the SEA and LEAs.
(d) Limitation on reimbursement. The cost of reimbursement described in paragraph (c) of this section may be reduced or denied (1) If - (i) At the most recent IEP Team meeting that the parents attended prior to removal of the child from the public school, the parents did not inform the IEP Team that they were rejecting the placement proposed by the public agency to provide FAPE to their child, including stating their concerns and their intent to enroll their child in a private school at public expense; or (ii) At least ten (10) business days (including any holidays that occur on a business day) prior to the removal of the child from the public school, the parents did not give written notice to the public agency of the information described in paragraph (d)(1)(i) of this section;
(2) If, prior to the parents' removal of the child from the public school, the public agency informed the parents, through the notice requirements described in § 300.503(a)(1), of its intent to evaluate the child (including a statement of the purpose of the evaluation that was appropriate and reasonable), but the parents did not make the child available for the evaluation; or (3) Upon a judicial finding of unreasonableness with respect to actions taken by the parents.
(e) Exception. Notwithstanding the notice requirement in paragraph (d)(1) of this section, the cost of reimbursement - (1) Must not be reduced or denied for failure to provide the notice if - (i) The school prevented the parents from providing the notice; (ii) The parents had not received notice, pursuant to § 300.504, of the notice requirement in paragraph (d)(1) of this section; or is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at 7 [S.D.N.Y. Aug. 27, 2010]).
Tuition reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the child from public school, or by written notice ten 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." (20 U.S.C. § 612[a][10][C][iii][I] ; see 34 C.F.R. § 300.148[d]) 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." (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004])
ii. Analysis
The Parents sent a ten-day notice letter in a timely manner, expressing their intent to unilaterally place the Student at the Private School for the 2022-2023 SY. In the letter, the Parents informed the District that he would seek funding from the District for the placement. (Ex. B.2-3) (iii) Compliance with paragraph (d)(1) of this section would likely result in physical harm to the child; and (2) May, in the discretion of the court or a hearing officer, not be reduced or denied for failure to provide this notice if - (i) The parents are not literate or cannot write in English; or (ii) Compliance with paragraph (d)(1) of this section would likely result in serious emotional harm to the child. (Approved by the Office of Management and Budget under control number 1820-0030) (Authority: 20 U.S.C. 1412(a)(10)(C))
iii. Conclusion
Upon review of the record, I find that the Parents cooperated with the District and did nothing to impede them from developing an appropriate IEP for the Student. As such, I find no reason for reduction in tuition reimbursement. I, therefore, rule for the Parents in Prong III.
It is therefore ORDERED
For the District to reimburse/directly pay the Parents 7/Private School 8 for cost of tuition, related services 9, and transportation to and from the Private School, where they unilaterally placed the Student for the 2022-2023 SY.
Dated: June 9, 2023
7 Parent requires reimbursement for $2000- deposit upon presentation of same. 8 District has outstanding bill of $57,866..68 to be paid directly upon invoice. 9 Per the pendency arrangement in this case, and based upon the instant superseding disposition, I direct that the difference between the 460 hours of authorized related services (per the authorization (pendency order)) be the starting point for the 2022-2023 SY related service procurement. Against this amount, the Student has utilized approximately
260 hours of such procurement (See assertions of counsel on transcript dated June 9, 2023). I hereby direct implementation to calculate the actual usage under pendency and to the extent that the actual usage is less than the 460 hours authorized per pendency, then create a bank of such services to be utilized at the discretion of the Parent and the Student’s related service providers provided that the bank of such hours is utilized within one year of this order. At the end of the one-year period any unused hours shall be forfeited.
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.
Footnotes
[1] A hearing was held across the following dates: July 26, 2022; August 11, 2022; October 20, 2022; December 16, 2022; March 8, 2023; May 16, 2023; May 23, 2023; and June 8, 2023.
[2] The CSE team recommended the Student be placed in a 15:1 special education classroom for a ten-month placement. Additionally, the team recommended the following related services: Occupational Therapy (Individual, 2 x 30); Speech-Language Therapy (Individual, 3 x 30)(3:1, 2 x 30); Counseling Services (3:1, 1 x 3); and PCAT (4 x 60 per year in an NYC DOE Community School). (Ex. B-2).
[3] In the letter, the Parents wrote the following: The CSE’s decision was irrational and not supported by the substantive evidence presented at the IEP review meeting. The CSE failed to give meaningful consideration to the opinion of the unilaterally place the Student at the Private School for the 2022-2023 SY. (Ex. B-1). Finally, on July 1, 2022 the Parents filed the complaint notice. (Ex. A).
[4] 8 NYCRR Part 200.1(zz)(1) Autism means a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age 3, that adversely affects a student’s educational performance. Other characteristics often associated with autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences. The term does not apply if a student's educational performance is adversely affected primarily because the student has an emotional disturbance as defined in paragraph (4) of this subdivision. A student who manifests the characteristics of autism after age 3 could be diagnosed as having autism if the criteria in this paragraph are otherwise satisfied.
[5] “Special education” is defined by the IDEA as specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a child with a disability, including (A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and (B) instruction in physical education. The term “related services” is defined as transportation, and such developmental, corrective, and other supportive services (including speech pathology and audiology, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, counseling services, including rehabilitation counseling, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children. 20 U.S.C. § 601(26).