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CASE NUMBER: 575556 - NYC: 228279
FINDINGS OF FACT AND DECISION
Case Number: 228279
Student’s Name: REDACTED
School District: N.Y.C. Dept. of Ed.,
Home District # REDACTED
Service District # REDACTED
Impartial Hearing Officer: Dr. Oren Varnai, Esq.
Date of Filing: 7/5/2022
Hearing Requested by: Parent
Dated of Hearing: 11/2/2022
Record Close Date: 11/2/2022
Date of Decision: 11/15/2022
NAMES AND TITLES OF PERSONS WHO APPEARED AT THE DUE PROCESS HEARING:
For the Student:
- • REDACTED, Esq. for the parent, (hereinafter referred to as “Parent’s attorney”)
- • REDACTED (hereinafter referred to as “the Parent”).
For the Department of Education (“DOE”):
- • REDACTED, Esq. appeared on behalf of the DOE, (hereinafter referred to as “District’s Representative”)
Glossary of Terms
Parent – REDACTED
Private School – REDACTED
Consulting Teacher – REDACTED from Private School Head Teacher – REDACTED from Private School
NEW YORK CITY OFFICE OF ADMINISTRATIVE
TRIALS AND HEARINGS (OATH)
SPECIAL EDUCATION HEARINGS DIVISION
REDACTED, a Minor, by and through his/her Parent(s),
PETITIONER FINDINGS OF FACT AND DECISION
against Case # 228279 THE NEW YORK CITY Dr. Oren Varnai, Esq.
DEPARTMENT OF EDUCATION, Impartial Hearing Officer
RESPONDENT
Introduction
This proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482; the federal regulations implementing IDEA, 34 C.F.R. §§ 300.1, et seq.; Article 89 of the New York State Education Law; and the New York State regulations at 8 NYCRR § Part 200, et seq.
The undersigned Impartial Hearing Officer (“IHO”) is a certified New York State Special Education Hearing Officer, employed by the New York City Office of Administrative Trials and Hearings (“OATH”) as a Special Education Impartial Hearing Officer, and meets all of the qualifications and requirements outlined in both federal and state statute which grant the IHO the authority to adjudicate this hearing. Furthermore, the IHO is not currently, nor has ever been, an employee of the NYC Department of Education, and does not have any personal or professional interest or bias that conflicts with his objectivity to hear this matter.
Background and Procedural History
Petitioner (Parent) is the parent of Student (“Student” or “Child”). On 7/5/2022, Petitioner filed a Due Process Complaint (“Complaint” or “DPC”) against Respondent, the New York City Department of Education (“NYC DOE” or “DOE” or “District”). The parent alleged that the District failed to provide the Student a free appropriate public education (“FAPE”) for the 2022-2023 school year, by, among other things, failure to consider all evaluative data, failure to consider non-public-school placement, inappropriate class size and student-to-teacher ratio, and failure to develop an IEP that considered Student’s unique needs.
The DOE failed to file a Due Process Response to Parent’s DPC as required under 8 NYCRR Section 200.5(i)(4), or issue a Prior Written Notice (“PWN”) explaining “why the school district proposed or refused to take action raised in the complaint.” No resolution meeting was ever held despite the requirements outlined in 8 NYCRR Section 200.5(j)(2).
A Pre-Hearing Conference was held on 8/9/2022, and a Pendency Hearing was held on 8/25/2022. A Status Conference was held on 10/3/2022, but DOE did not appear or reasonably explain their absence or failure to communicate with the tribunal despite being aware of the required appearance.[1]
The Due Process Hearing took place on 11/2/2022, where the District asserted in conclusory fashion that the DOE provided Student a FAPE, presented no documentary evidence or witnesses,[2] waived its right to an opening statement,[3] and provided an oral closing statement. Parent submitted documentary evidence and the testimony of Parent, Consulting Teacher, and Head Teacher. Parent alleged that the District failed to provide the Student with the necessary supports and program to address his individual educational needs.[4] The District’s alleged failures caused Parent to enroll Student in Private School and unilaterally placed him in a program that was tailored to him and designed to ensure that he made educational progress.
Finding of Facts and Decision
- • The DOE Deprived Student of a FAPE for the 2022-2023, 12-month, School Year (Burlington/Carter Prong I)
The IDEA (20 U.S.C. §§ 1400-1482) contemplates two specific purposes designed to ensure (1) that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) that the rights of students with disabilities and parents of such students are protected.[5] The burden of proof 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.[6]
A free and appropriate public education can be said to be offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits.[7] "[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP."[8] The Supreme Court ruled that "[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement."[9]
"Multiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not,"[10] and the Second Circuit explained that not all procedural errors render an IEP legally inadequate under the IDEA.[11] Under the IDEA, if procedural violations are alleged, an IHO may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits.[12]
An IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE.[13] A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction,"[14] but the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP."[15] "The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created,"[16] and an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents,"[17] is what is required. School districts are not required to "maximize" the potential of students with disabilities,[18] but are required to provide "an IEP that is 'likely to produce progress, not regression,' and... affords the student with an opportunity greater than mere 'trivial advancement.'"[19] The IEP must be "reasonably calculated to provide some 'meaningful' benefit,"[20] and designed to be provided in the least restrictive environment (“LRE”).[21] An appropriate IEP must include a description of the Student’s present levels of academic achievement and functional performance,[22] and outlines annual goals specifically designed to address the Student’s needs resulting from his disability in order to make progress in the general education curriculum[23] through the use of appropriate special education services.[24] Although not every student can be expected to attend a regular education curriculum, the IEP “must be appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives."[25]
Neither Party submitted the Student’s most recent IEP into the record, and the DOE failed to show how the CSE made its recommendation, how the IEP appropriately describes the Student, or whether the IEP is meaningfully calculated to confer educational benefit. None of DOE’s cross-examination of Parent’s witnesses shed light on DOE’s mandate to provide Student with a FAPE. In short, the DOE declined to “offer a cogent and responsive explanation for their decisions” in creating that IEP, and it is “through the IEP that “[t]he ‘free appropriate public education’ required by the Act is tailored to the unique needs of” a particular child.”[26]
As to Prong I of the Burlington/Carter standard, the DOE failed to meet its burden that it provided the Student with a FAPE for the 2022-2023, 12-month, school year. Therefore, I am constrained to find that the DOE failed to offer the Student FAPE for the 2022-2023, 12-month, school year. Moreover, a review of the record herein establishes that the weight of the evidence supports the conclusion that the DOE failed to offer the Student an educational program reasonably calculated to offer FAPE.
- • The Unilateral Placement Was Appropriate (Burlington/Carter Prong II)
A private school placement must be "proper under the Act."[27] This means that the private school must offer an educational program which met the student's special education needs.[28] Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate."[29] 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.'"[30]
Parents need not show that the placement provides every special service necessary to maximize the student's potential, and 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."[31] A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student.[32]
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. 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.[33]
The DOE presented no evidence or rebuttal that Parent’s unilateral placement was inappropriate. Parent provided the Private School program description,[34] and Private School Consulting Teacher and Head Teacher testified via an extensively detailed affidavits[35] of their familiarity with Student and his needs, that Student was placed in a classroom that would address those needs, and described the services Student was receiving at the Private School. I find the testimony credible and unrebutted by the DOE, and I find that the Private School provided Student with instruction specially designed to meet his unique needs.
Based on the evidence presented at the hearing I find that Parents have met their burden in proving that the private program offered an educational program which met Student’s need under Prong II of the Burlington/Carter standard.
In reviewing the testimony and documents presented, the weight of the evidence establishes that Student’s individual special education needs were addressed by the Private School and that the instruction offered was "reasonably calculated to enable the child to receive educational benefits."[36]
- • Equities Are in Parents’ Favor (Burlington/Carter Prong III)
Even if a parent establishes a right to reimbursement under the IDEA, "courts retain discretion to reduce the amount of a reimbursement award if the equities so warrant."[37] In making that equitable determination, a hearing officer may consider many factors, including, inter alia, whether a parent’s unilateral withdrawal of her child from the public school was justified, whether the parent provided the Department with adequate notice of the withdrawal, whether the amount of private-school tuition was reasonable, whether the parent should have availed herself of need-based scholarships or other financial aid from the private school, and whether there was any fraud or collusion in generating (or inflating) the tuition to be charged to the Department, or whether the arrangement with the school was fraudulent or collusive in any other respect.[38]
By way of relief, Parent seeks reimbursement[39] for their private school tuition costs. Direct tuition funding is relief encompassed by the equitable remedial powers inherent in IDEA, and Parent may seek direct funding in the instance in which, “due to a lack of financial resources, [parents of a student with a disability] have not made tuition payments but are legally obligated to do so.” Parent has not requested direct funding, or presented evidence of inability to pay.
It is well established that a Parent must inform the CSE during the most recent CSE meeting, or notify the District at least ten days prior to the Student’s 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."[40] 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."[41] “Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision.”[42]
Here, Parent fulfilled the statutory requirement to provide the DOE with a Ten-Day Notice (“TDN”)[43] detailing their specific concerns and giving the DOE notice of their intention to unilaterally place the Student at the Private School. No evidence was submitted at hearing describing the DOE’s response to the Ten-Day Letter, or that the IEP was reasonably calculated to provide the Student with meaningful educational benefit.
Overall and after considering the record at hearing, I find that the equities support Parent’s claim for tuition reimbursement.
- • IV. Order
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY
- • ORDERED that the DOE shall reimburse Parent for Private School tuition in an amount not to exceed $98,725.00 for the 2022-2023, 12-month, school year, within 14 days of presentation by the Parent of paid receipts;
- • ORDERED that beginning not more than 3 days from issuance of this order, the District is to provide Student with limited-time transportation within the parameters of Student’s IEP, from the safe curb location nearest his home to the Private School; if the District fails to implement this order within 3 days of issuance of this order, the Parent may utilize a taxi or other market-rate car service to transport the Student to and from school and the District is directed to reimburse for any such services within 15 days of receipt of taxi or car service receipts.
DATED: SO ORDERED
11/15/2022
Dr. Oren Varnai, Esq., IHO
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.
An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for proceedings before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.
EXHIBITS
Parent Exhibit
Date
Title
No. of Pages
P - A
7/5/2022
Hearing Request
7
P - B
4/21/2020
IEP
34
P - C
9/22/2020
Order on Pendency
9
P - D
4/22/2021
PWN
4
P - E
9/6/2021
Order on Pendency
8
P - F
6/17/2022
TDN
2
P - G
10/4/2019
Neuropsychological Evaluation
30
P - H
3/21/2022
Recommendation letter from Pediatrician
2
P - I
3/21/2022
Request for Medical Accommodations
1
P - J
5/16/2022
Private School Enrollment Contract
2
P - K
6/17/2022
TDN Confirmation
1
P - L
6/17/2022
Private School Progress Report
26
P - M
Undated
Private School Description
7
P - N
10/25/2022
Affidavit Testimony of Consultant Teacher
4
P – O
Undated
Affidavit Testimony of Parent
2
P – P
10/27/2022
Affidavit Testimony of Head Teacher
7
DOE Exhibit
Date
Title
No. of Pages
NONE
IHO Exhibit
Date
Title
No. of Pages
NONE
Footnotes
[1] Tr. p. 6.
[2] Tr. p. 4.
[3] Tr. p. 12.
[4] Tr. p. 14.
[5] U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982].
[6] Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85.
[7] Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005].
[8] Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009].
[9] Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. __, 137 S. Ct. 988, 999 [2017].
[10] R.E., 694 F.3d at 190-91.
[11] M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003].
[12] U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR §200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245.
[13] U.S.C. § 1415[f][3][E][i].
[14] Rowley, 458 U.S. at 203.
[15] Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189.
[16] Endrew F., 137 S. Ct. at 1001.
[17] Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379.
[18] Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132.
[19] Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008].
[20] Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Endrew F., 137 S. Ct. at 1001.
[21] U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR §200.1[cc], §200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132.
[22] CFR 300.320[a][1]; 8 NYCRR §200.4[d][2][i].
[23] CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR §200.4[d][2][iii].
[24] CFR 300.320[a][4]; 8 NYCRR §200.4[d][2][v].
[25] Endrew F., 137 S. Ct. at 1000.
[26] Endrew F., 137 S. Ct. at 1002.
[27] Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12, 15 (1993); Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 370 (1985).
[28] 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).
[29] Gagliardo, 489 F.3d at 112.
[30] Id., quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006).
[31] Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115.
[32] U.S.C. § 1401(29); Educ. Law § 4401(1); 34 CFR 300.39(a)(1); 8 NYCRR 200.1(ww); Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 (2d Cir. 2014).
[33] Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).
[34] Ex. P-M.
[35] Ex. P-N; P-P.
[36] Frank G., 459 F.3d at 364.
[37] Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246-47, 129 S. Ct. 2484, 174 L. Ed. 2d 168 (2009).
[38] E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014).
[39] The entitlement created by the law is exclusively the package of rights to a free appropriate public education in the least restrictive environment. While the statute creates a broad power on the part of decision-makers to devise remedies when that entitlement has been denied, those powers are discretionary and do not yield a right to receive reimbursement; reimbursement is merely an option, at the discretion of the decision maker, as he or she balances the equities of the individual case. To call a case a ‘reimbursement’ case is, therefore, to mischaracterize the parties’ rights and responsibilities by treating a discretionary remedy as though it were an inviolable right. For that reason, there is no such thing as a ‘reimbursement’ or ‘prospective payment’ case under the IDEA. There is, simply, no right or entitlement to receive either of those remedies under the statute.
[40] U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1].
[41] State Appeal No. 22-050 quoting Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st 29 Cir. 2004].
[42] Id, citing Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 376 [2d Cir. 2006]; Voluntown, 226 F.3d at 68
[43] Ex. P-F; P-K.