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FINDINGS OF FACT AND DECISION
Case Number: 228491
Student’s Name: “REDACTED”
Date of Birth: REDACTED
District: REDACTED 1
Hearing Requested by: “REDACTED”, Parent
Date of Hearing: September 15, 2022
November 3, 2022
December 6, 2022
February 10, 2023
March 9, 2023
March 22, 2023
Record Close: September 28, 2023
Hearing Officer: ANNETTE HICKS GILL, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
SEPTEMBER 15, 2022 *
For the Student:
“REDACTED”, Legal Fellow
For the Department of Education:
“REDACTED”, ESQ., Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED
NOVEMBER 3, 2022 *
For the Student:
“REDACTED”, Legal Fellow
For the Department of Education:
“REDACTED”, ESQ., Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED
DECEMBER 6, 2022 *
For the Student:
“REDACTED”, Legal Fellow
For the Department of Education:
“REDACTED”, ESQ., Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED
FEBRUARY 10, 2023 *
For the Student:
“REDACTED”, Legal Fellow
For the Department of Education:
“REDACTED”, ESQ., Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED
MARCH 9, 2023 *
For the Student:
“REDACTED”, Esq. “REDACTED”, For the Parent
For the Department of Education:
NONE
NAMES AND TITLES OF PERSONS WHO APPEARED
MARCH 22, 2023 *
For the Student:
“REDACTED”, Esq. REDACTED, For the Parent
“REDACTED”, Parent Student
“REDACTED”, REDACTED Language Interpreter
“REDACTED”, Assistant head of School
“REDACTED”, Consulting Teacher
For the Department of Education:
“REDACTED”, Independent Hearing Consultant
* All appearances were by video conference.
This case was brought before the undersigned Impartial Hearing Officer pursuant to appointment by the New York City Department of Education (DOE) under the Individual with Disabilities Education Act (IDEA), 20 United States Code §1415(f)(1).
“REDACTED” (“Student” or “REDACTED”) is a REDACTED year-old student whose parent, “REDACTED” (Parent) brought the instant action, arguing that the DOE had failed to provide their child with a free appropriate public education (FAPE) for the 2022-2023 school year.
The Impartial Hearing convened March 9, 2023, and continued March22. The requested extensions were filed, and the record was closed on September 28, 2023.
DISTRICT AND PARENT POSITIONS
PARENT
An Individualized Educational Program (“IEP”) meeting was held on February 3, 2022. The parents participated in the meeting by phone along with two representatives from “REDACTED”. The parent has not yet received a school location letter containing a DOE placement.
The Due Process Complaint (DPC) dated July 5, 2022 included multiple claims that the DOE had failed to provide the student an appropriate educational program and placement for the 2022-2023 school year, requesting reimbursement for unilateral placement at “REDACTED” School and Institute (““REDACTED”” or “School”) because of the DOE’s alleged failure to locate a program, public or private, that could implement the student’s Individualized Educational Program (IEP).
The Student has provided evidence in support of its position via testimony and affidavits of “REDACTED” and “REDACTED” of The “REDACTED” School and “REDACTED”, Parent of the Student.
Pursuant to the Parent’s testimony, during his years at “REDACTED”, “REDACTED” has made academic progress, especially in reading and math. It is the Parent’s contention that “REDACTED” is making progress at “REDACTED” and therefore, it is an appropriate placement for REDACTED.
“REDACTED” attests that she has been a Consulting Teacher at “REDACTED” since February 2020. She stated, “Based on my observations and the information shared with me by REDACTED teachers and providers, while “REDACTED” had made academic progress in the 2021-2022 school year, at the time of the February 3, 2022 IEP meeting, he continued to require a small classroom, low student to teacher ratio, multisensory instruction, substantial 1:1 support, and a peer grouping consisting of students at or above his level of functioning without significant behavioral challenges. The only updates provided or reviewed at the meeting were “REDACTED”’s June 2021 progress report from “REDACTED” and my elaboration on them, which reflect “REDACTED”’s continued reliance on and need for the level of support he receives at “REDACTED””.
Additionally, pursuant to DPC dated July 5, 2022, the Parent requests a final order consistent with the IHO’s unappealed order issued on May 7, 2022 in Case No. 202615. According to the IHO’s order, REDACTED pendency placement is “REDACTED”. Further, it is the Parent’s position is that: The DOE Failed to Offer REDACTED a FAPE for the 2022–2023 School Year by failing to: (1) reevaluate the student in all areas of suspected disability; (2) recommend an appropriate program to meet the student’s learning challenges; and (3) offer a timely and appropriate school placement. Accordingly, the parent has reenrolled “REDACTED” at “REDACTED” for the 2022–2023 school year. Counsel for the Parent requests a finding with respect to the 2022–2023 school year that: 1. “REDACTED” is “REDACTED”’s pendent placement; 2. The DOE has not offered REDACTED a FAPE for the 2022–2023 school year; 3. REDACTED is an appropriate placement for REDACTED; and 4. Equitable considerations favor the parents. Counsel for the Parent requests that the Hearing Officer order the DOE to: 1. Issue direct payment to “REDACTED”; and 2. Issue direct payment to “REDACTED” for “REDACTED”’s tuition and related services for the 2022–2023 school year.
DISTRICT
In its Closing brief the BOE provides that although the Department concedes a FAPE defense, the REDACTED School is an inappropriate school for REDACTED. Finally, the equities favor the DOE because the parent had no intention of placing REDACTED in a public school and was dissatisfied with the IEP and the process at the outset. The DOE therefore submits tuition reimbursement requests should be denied in full.
FINDINGS OF FACT
“REDACTED” is fourteen-years old and has been diagnosed with a mild intellectual disability and a severe disorder in language and cognitive-linguistic abilities (i.e., expressivereceptive language delay). His disability classification is “Speech or Language Impairment” and has been unilaterally placed by his parent at the “REDACTED” on July 5, 2022. At the February 2022 IEP meeting, the DOE recommended a 12:1+1 program at a District 75 DOE school. Assessments and materials were provided to the Parent and it was determined that Farham meets the eligibility criteria for an educational disability as defined in Part 200 of the regulations of the Commissioner of Education. REDACTED Father “REDACTED” filed a DPC on behalf of his son on July 5, 2022 alleging the Department has failed to provide REDACTED. with a FAPE for the 2022–2023 school year. Pursuant to the DPC dated July 5, 2022 (Exhibit A), the Department of Education (DOE) failed to offer REDACTED year-old student REDACTED Fuad (the “Student” or “REDACTED”) a Free and Appropriate Public Education (FAPE) for the 2022-2023 school year. Proposed resolution per the Complaint (Exhibit A) is that “REDACTED” is in an appropriate and necessary placement for the student for the 2022-2032 school year. Pursuant to the 10-Day Notice of August 22, 2022 (Exhibit C) the parent placed the Committee on Special Education (CSE) on notice of their intention to seek tuition reimbursement and/or direct payment for “REDACTED”’s tuition for the 2021-2022 school year at “REDACTED”. The parent maintains in the Notice that the NYC DOE failed to offer her child a Free Appropriate Public Education (FAPE).
On March 22, 2023, evidence was presented by the parents including testimony given by “REDACTED” staff “REDACTED” and “REDACTED”.
The DOE declined to present a case at hearing and in its Closing brief the Department concedes a FAPE defense. Therefore, it is undisputed that REDACTED was denied a FAPE for the 2022-2023 school year. However, the DOE argues in its Closing Brief that even if it is determined that the DOE failed to provide a FAPE, in order to receive an award of reimbursement for the tuition payments paid to the unilaterally chosen private school the parents must show that their chosen program is appropriate, and the equities favor the parents.
CONCLUSIONS OF LAW
The decision in this case rests on a determination of the three-pronged test set forth by the United States Supreme Court in the Burlington case, which provided that a board of education may be required to pay for educational services obtained for a child by the child’s 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. School Committee of the Town of Burlington v. Dept. of Educ., Massachusetts, 471 U.S. 359 (1985); Florence County Sch. Dist. Four v. Carter, 510 US 7 (1993). ISSUE 1 - Appropriateness of School District Program
An appropriate educational program begins with an IEP that includes a statement of the student’s present levels of academic achievement and functional performance. See 34 CFR §300.320(a)(1); 8 NYCRR §200.4(d)(2)(i); see also Tarlowe v. New York City Bd. Of Educ., 2008 WL 2736027 (SDNY July 3, 2008), noting that a CSE must consider, among other things, the “results of the initial evaluation or most recent evaluation” of the student, as well as the academic, developmental, and functional needs of the student. The IEP must accurately reflect the results of evaluations to identify the student's needs, establish annual goals related to those needs, and provides for the use of appropriate special education services. 34 CFR §300.320(a)(2); 34 CFR §300.320(a)(4); 8 NYCRR §200.4(d)(2)(iii); 8 NYCRR §200.4(d)(2)(v); see Application of the Board of Education, Appeal No. 14-104; Application of the New York City Department of Education, Appeal No. 13-121.
In this case, sufficient supporting documentary evidence and witness testimony supports the position that the child was not provided with a FAPE for the 2022-2023 and the DOE did not provide any evidence to the contrary.
The District failed to present any testimonial evidence, nor did they submit any documentary evidence to prove that the IEP created for the 2022- 2023 school year provided the Student with a free and appropriate public education.
Additionally, the District failed to present any testimonial or sufficient documentary evidence to support that the recommended program could provide the student with appropriate services or implement the subject IEP. The Department of Education also failed to present any documentary or testimonial evidence to prove that it considered adequate evaluative material.
As provided by the Closing brief of the parent, the documents the DOE purports to have relied on when developing the 2022 IEP do not contain sufficient or adequate evaluative data to justify their recommendation of a 12:1+1 District 75 program. For one, “REDACTED”’s functional levels have not been assessed since he began attending “REDACTED” during the 2016-2017 school year. (Exhibit O). “REDACTED” testifies that the DOE did not conduct any updated evaluations of REDACTED prior to the 6 February 3, 2022 IEP meeting). Therefore, the most recent standardized assessment available to the DOE at the IEP meeting was the outdated 2017 neuropsychological evaluation. The only other two documents the DOE relied on according to the Prior Notice Packages—the 2021 IEP and the June 2021 REDACTED Report—do not contain any evaluative data from standardized assessments. (Exhibit. F).
For the reasons noted, I find the district failed to provide a FAPE for the student. ISSUE 2 – Appropriateness of Parent Placement
Analysis turns to the second prong of Burlington, under which the parents bear the burden of proving the appropriateness of the services obtained for the student. M.S. v. Board of Education of the City of Yonkers, 231 F.3d 96, 104 (2d Cir. 2000); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 94-29; Application of a Child with a Disability, Appeal No. 95-57. In order to meet that burden, the parents must show that the REDACTED offered an educational program designed to meet student’s special education needs. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985). A unilateral placement is only appropriate if it provides education instruction specifically designed to meet the unique needs of a handicapped child. Gagliardo v. Arlington Central School District, 489 F.3d 105 (2d Cir. 2007).
In this regard, I find that the parents have sustained their burden of demonstrating the appropriateness of the program at “REDACTED”. It was established through testimony and other evidence that the school provides the types of services and instruction that the student is in need of and it is found that he made significant progress at this placement by the Parent. As provided in the Parent’s Closing brief, the same considerations and criteria that apply in determining whether the School District’s placement is appropriate should be considered in determining the appropriateness of the parents’ placement.” The issue turns on whether the placement is “‘reasonably calculated to enable the child to receive educational benefits.’” Id. (quoting Rowley, 458 U.S. at 207). “[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. Further, counsel for the parent argues and I agree that “REDACTED” offered “REDACTED” the type of individualized instruction, tailored to meet a student’s unique special education needs, that satisfied the Rowley standard and warrants a finding in favor of Mr. Islam on the second Burlington prong.
For all the above, I find that the Parent has demonstrated the appropriateness of the program at “REDACTED” for the Student. ISSUE 3 – Equities
The third prong of the Burlington decision requires a balancing of the equities in determining whether reimbursement should be awarded. The Individuals with Disabilities Education Act (IDEA) provides that an award of tuition reimbursement may be reduced or denied if notwithstanding their being advised that they should do so, parents neither inform the CSE of their disagreement with its proposed placement and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the school district with written notice of such information ten business days before such removal. 20 U.S.C. §1412(a)(10)(C)(iii).
In this case, the Parent did inform the District of their disagreement with the proposed placement their intentions to place their child in a private school at the public school’s expense within the appropriate timeframe. As provided by testimony, the Parent, “REDACTED” cooperated with the DOE and in no way prevented the DOE from offering “REDACTED” a FAPE for the 2022–2023 school year. Mr. “REDACTED” participated in the February 3, 2022 IEP meeting and stated his concerns with the team’s recommendations. (Exh. O). Through counsel, “REDACTED” provided timely written notice to the CSE of his concerns regarding “REDACTED”’s recommended program and his intent to enroll REDACTED at REDACTED and seek payment of the tuition from the DOE. (Exhs. B, C.) The DOE made no attempt to address the concerns about “REDACTED”’s educational program and placement raised in the ten-day notice. Mr. “REDACTED” nevertheless remained open to the DOE’s recommended placement and made several attempts to visit the assigned school, “REDACTED” — “REDACTED”. (Exh. O ). Furthermore, as also provided by counsel for the parent, an award of direct tuition payment to “REDACTED” is an appropriate remedy in this case, as the record demonstrates that “REDACTED” is liable for “REDACTED”’s tuition. (Exh. L). The “REDACTED” enrollment contract unambiguously creates a binding obligation on the part of “REDACTED” to pay vs tuition for the 2022-2023 school year. (Exh. L) (“I acknowledge that my child’s tuition for the 2022-2023 school year will be $98,725.00, and I agree to pay such tuition in accordance with the terms and conditions of this Contract.”) “REDACTED” acknowledged that he is responsible for the “REDACTED” tuition pursuant to the Contract that he signed. (Exh. L at 3). At hearing, “REDACTED” testified that at the time of signing the contract, he was not in a financial position to pay tuition and wait to be reimbursed by the DOE.(Exh. O at ¶40).
Lastly, counsel for the parent asserts and we agree that factors relevant to equitable considerations include whether the withdrawal of the student from public school was justified. The 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.
In terms of equities, there is no evidence offered to support a claim that the Parent failed to raise an issue with the District’s evaluation before seeking alternative education options. Under the circumstances, analysis of equities would not prevent an award for the student’s tuition at “REDACTED”.
REIMBURSEMENT
A hearing officer is empowered to grant relief he, she or the court determines to be appropriate. 34 C.F.R. §300.516(c)(3). Once such remedy is reimbursement of tuition and related expenses. Florence Cunty Sch. Dist. Four v. Carter, 510 U.S. 7, IDELR 532 (1993); Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S.359, 103 LRP 37667(1985). A local education agency (LEA”) may be required to reimburse parents for their tuition payment to a private school for the services obtained for the student by his or her parents if the services offered by the LEA were inadequate or inappropriate, the services selected by the parents were appropriate under the Act, and equitable considerations support the parents’ claim for reimbursement. Id. In Burlington, the Court found that Congress intended retroactive reimbursement to parents by a Lea as an available remedy in a proper case. Burlington, 471 U.S.at 370-71. “Reimbursement merely requires [an LEA] to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper [IEP] Id. The mere fact that the private school placement does not bar the parents from reimbursement. Florence County Schl. Dist. Four v. Carter, 510 US. 7 (1993).
The initial inquiry is whether the student’s IEP and/or placement is/are “proper or “appropriate.” School Comm. Of Burlington, 471 U.S. at 369 and 374. However, this initial inquiry may go beyond the appropriateness of the IEP and/or placement, See, e.g., Forest Grove v. T.A., 57 U.S. 230 (2009) (child find); P.C. v. Oceanside Union Free Sch. Dist., 818 F. Supp. 2d 516 (E.E.N.Y. 2011) (eligibility) Mr. N.C. v. Bedford Cent. School. Dist., 300 F. App’s 11(2d Cir. 2008) inappropriate evaluation).
In this case, it was established that the placement was no longer able to meet the student’s needs as demonstrated by the testimony of the “REDACTED” school representatives and of the Parent.
Should the hearing officer determine that the school district did not offer a FAPE to the student, the next inquiry is whether the parent’s unilateral placement is appropriate” or “proper”. School Comm. Of Burlington, 42 U.S. at 369 and 370; see also Carter 510 U.S. at 15.
I find that the Parent demonstrated through documentary and testimonial evidence that the unilateral placement was appropriate for the student for the 2022-2023 school year.
The final consideration is the balancing of the equities. In this step, the hearing officer must examine the action of the parents and school district, including:
1. Whether the parents failed to provide the school district with timely notice, either at the most recent IEP team meeting or at least 10 business days prior to removal of the student from the public school of their rejection of the proposed public placement, including their concerns and intent to enroll the student in a private school at public expense. 20 U.S.C. § 1412(a)(10)(C)(iii)(I); 34 C.F.R. § 300.148(d)(1).
2. Whether prior to the student’s removal, the school district informed the parents of its intent to evaluate the student, but the parent did not make the student available for the evaluation. 20 U.S.C. §1412(a)(10)(C)(iii)(II), 34 C.F.R. § 300.148(d)(2).
3. Whether the parents’ action was unreasonable. 20 U.S.C. §1412(a)(10)(C)(iii)(III), 34 C.F.R. § 300.148(d)(3).
4. Whether the cost of the private placement is unreasonable. Florence County Sch. Dist. Four v. Carter, 510 U.S. at 16.
5. Whether there was a lack of parental cooperation with the school district.
C.G. v. Five Town Community Sch. Dist., 513 F.3d 279 (1st Cir. 2008)
In this case, the Parent gave timely notice, and the District failed to perform an appropriate evaluation of the Student. I find the Parent’s action and the cost to be reasonable. Lastly, the District failed to demonstrate lack of cooperation on the Parent’s part.
ORDER
1. The New York City Department of Education failed to provide Student a Free and Appropriate Public Education to Student for the 2022-2023 school year;
2. The recommended program and placement for the student in the 2022-2023 school year is not appropriate and the student’s IEP cannot be implemented in an appropriate and effective manner;
3. The New York City Department of Education shall fund tuition costs associated with the student’s appropriate special education program at “REDACTED”;
4. The New York City Department of Education shall issue payment for REDACTED tuition at “REDACTED” for the 2022-2023 school year in the amount of $98,725.00 to be paid directly to the school.
IT IS SO ORDERED.
Dated: October 11, 2023
Annette HIcks Gill
ANNETTE HICKS GILL
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 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
DEPARTMENT OF EDUCATION EXHIBITS
None
PARENT EXHIBITS
EXHIBIT DATE DOCUMENT PAGES
A. Due Process Complaint 7/5/2022 6 pages
B. Ten Day Notice 6/17/2022 2 pages
C. Ten Day Notice 8/26/2022 2 pages
D. IEP 2/3/2022 32 pages
E. “REDACTED” School IEP Annual Review Notes 2/3/2022 6 pages
F. IEP 2/3/2021 35 pages
G. Prior Notice Package 3/18/2022 8 pages
H. Prior Notice Package 6/24/2022 18 pages
I. “REDACTED” Report 2020-2021 School Year 6/18/2021 17 pages
J. “REDACTED” Progress Report 2022-2023 School Year 2/3/2023 27 pages
K. Testing ended Neuropsychological Evaluation – “REDACTED” 8/10/17 18 pages
L. “REDACTED” Tuition Contract 5/10/2022 3 pages
IHO EXHIBITS
EXHIBIT DATE DOCUMENT PAGES
I. Parent’s Closing Brief 4/12/23 16 pages
II. District’s Closing Brief 4/12/23 8 pages