New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 576079 - NYC: 228785

FINDINGS OF FACT AND DECISION

Student’s Name: [Redacted]

Date of Birth: [Redacted]

Hearing Requested by: Parent

Record Close Date: 01/26/2023

Hearing Officer: Mitchell Regenbogen, Esq.

[Redacted], a minor, by and through

His Parents, [Redacted]

FINDINGS OF FACT AND

Petitioner DECISION AND ORDER

-against-

Mitchell Regenbogen,

New York City Department of Education, Hearing Officer

Respondent.

PROCEDURAL HISTORY

On December 21, 2022, I completed an impartial hearing by telephone in [Redacted], New York, pursuant to the Individual with Disabilities Education Act (IDEA), 20 C.F.R. 1400 et seq., regarding the special education program of [Redacted] (hereinafter referred to as “the Student”). A list of persons in attendance is appended hereto.

The proceeding was initiated at the request of the Parents by a due process complaint filed July 7, 2022, wherein it is alleged that the New York City Department of Education (the “District”) failed to provide the Student with a free appropriate public education (FAPE) for the 2022-2023 school year. In their post-hearing brief the Parents’ final request for relief is direct payment of the cost of tuition and related services, including special transportation, for the Student’s attendance at the [Redacted] ([Redacted]) for the 2022-2023 school year.

I was appointed as impartial hearing officer on July 22, 2022. Hearings were held on August 30, 2022, November 9, 2022, and the due process hearing was held on December 21, 2022.

A pendency order was issued on August 30, 2022, after a pendency hearing at which the District did not appear. The pendency order was based on a Findings of Fact and Decision (FOFD), dated April 11, 2022, issued regarding this Student on case number 210832. IHO Ex. I.

On November 2, 2022, the District moved in writing to dismiss the complaint with prejudice on the ground that the student turned 21 on [Redacted], and therefore became ineligible for the protections of the IDEA at the end of the 2021-2022 school year. The District argued that the student has no right to a FAPE for the 2022-2023 school year, and no right to bring a due process complaint. The District argued that it was in their discretion to extend eligibility under Bill 7866-A, but that it could not be required to do so.

Parents submitted papers in opposition on November 9, 2022, and argued that the District had already elected to extend the Student’s eligibility by scheduling and holding an Individualized Education Program (IEP) meeting and creating an IEP for the 2022-2023 school year, that the Parents specifically requested an extension of eligibility which was confirmed by district representative at the IEP meeting, by the District issuing two Prior Written Notices (PWN’s) and School Location Letters (SLL’s) to the Parents for the 2022-2023 school year, and by the District informing the Parents on July 8, 2022, that if they still wanted a unilateral placement at District’s expense they would have to file a due process complaint.

On November 11, 2022, the undersigned denied the District’s motion, finding that the District, by its own actions, had clearly and unequivocally used its discretion to extend the Student’s eligibility for special education services past his 21st birthday, and could not now, after due process litigation had commenced, reverse that decision. IHO Ex. II.

Additionally, on November 11, 2022, an unopposed Interim Order was issued for transcription of the audio recording of the March 16, 2022, IEP meeting. IHO Ex. III.

BACKGROUND AND POSITION OF THE PARTIES

[Redacted] is a [Redacted]-year-old student who has been classified by the District as a student with Multiple Disabilities, and a brain injury. Exs. C, E. He is diagnosed with [Redacted], [Redacted], [Redacted], strabismus, astigmatism, hyperopia, and global developmental delay. The Student’s brain injury has resulted in severe global impairments and delays. (Id.) These impairments adversely affect cognition, language, memory, attention, reasoning, abstract thinking, judgment, problem solving, sensory, perceptual and motor abilities, psychosocial behavior, physical functions, information processing, and speech. (Id.). These global deficits impact his daily living skills and his educational abilities and performance. (Id.).

The Student is non-verbal and non-ambulatory. (Id.). He is able to communicate using assistive technology (“AT”), facial expressions, vocalizations, body movements, and eye gazing. (Id.). The Student is fully dependent in all domains of mobility, requiring assistance for feeding and activities of daily living, and a two-person assist transfer to/from his wheelchair. (Id.).

Because of these needs and associated delays, including medical needs, the Student requires a high level of individualized supports, adaptations, and modifications. (Id.). He presents with highly intensive management needs requiring a high degree of individualized attention and intervention throughout the school day. (Id.).

On the hearing date the District representative stated that the District would not be presenting a “Prong I” case. Tr. 51:15-20. The District submitted into evidence two documents, including a transcript of the IEP meeting created pursuant to the November 11, 2022, Interim Order. The District called no witnesses.

The Parents submitted an evidence package containing 18 documents, including affidavits serving as the bulk of the direct testimony of [Redacted], [Redacted] director of special education, and the Parent [Redacted]. Both witnesses were cross-examined by the District.

FINDINGS OF FACT AND DECISION

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

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

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

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

A board of education may be required to pay for educational services obtained for a child by the child's parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim. (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; see also Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park,459 F.3d 356 [2d Cir. 2006], cert denied, Board of Educ. of Hyde Park Cent. School Dist. v. Frank G.,2007 WL 2982269 [Oct. 15, 2007].

The Parents raised multiple challenges to the committee on special education (“CSE”) actions and inactions for the 2022-2023 school year. Ex. A. The Supreme Court has found that “[a] reviewing court may fairly expect those authorities [school district staff] to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” Endrew F. v. Douglas County School District, 137 S. Ct. at 1002 (2017). Here the District submitted only minimal evidence and called no witnesses, and there was absolutely no explanation, let alone a cogent and responsive explanation, for the CSE’s actions and inactions on behalf of this Student for the 2022-2023 school year.

I find that the District has not, therefore, met its burden of proof in this proceeding. The Parents have therefore met the first of the three Burlington/Carter criteria for tuition payment/reimbursement.

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

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

No one factor is necessarily dispositive in determining whether Parent' 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, Parent need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. Gagliardo. 489 F.3d at 112 (quoting Frank G, 459 F.3d at 364-65).

The District contends at the outset in its post-hearing brief that the Parents cannot properly request tuition payment as their remedy as Parents have not established that they have any financial obligation to [Redacted] for the 2022-2023 school year.

Courts have recognized that standing is complicated in IDEA cases because of the number of remedies available and urgency of a student’s educational needs. E.M. 758 F.3d 442 at 451. Tuition payment under Burlington/Carter is one such remedy, requiring that parents who seek to change the placement of their student following a disagreement with the school district’s proposed placement do so at their own risk. Carter, 510 U.S. at 15. Courts have also fashioned a remedy for parents who, due to their financial conditions, are unable to expend private school tuition up front, and must await settlement or litigation and, in the process risk an unfavorable decision. E.M., 758 F.3d at 452 – 455. Such Parents, should they prevail, could be eligible for an order requiring the District to directly compensate the private school for services upon demonstration of a legal obligation to the school. Ultimately, they enroll their student in a private school at their own risk, an injury that can only be redressed by tuition payment.

To be eligible for direct relief under the IDEA, a Parent must establish a legal and financial obligation to the school. Mr. and Mrs. A. v. New York City Dep’t of Educ., 769 F.Supp.2d 403, 406 (S.D.N.Y. 2011). While the Second Circuit has observed that an allegation of a denial of FAPE constitutes injury-in-fact for the purposes of standing, it has demurred on whether FAPE denial alone is redressable by ordering the District to pay a student’s tuition directly. E.M., 758 F.3d 442 at 454. Instead, the courts have looked to an analysis of the Parent’s contractual obligation to pay tuition. Id. at 457 (while not reaching standing based on an alleged denial of FAPE, the Second Circuit determined that a parent was entitled to relief upon review of the unambiguous language of the enrollment contract establishing its obligation to pay tuition to the private school).

In this case there is no dispute that the Student is attending [Redacted] for the 2022-2023 school year. However, while the Parent testified in her affidavit that after the District was unresponsive “we decided to enroll him at [Redacted] for the 2022-2023 extended 12-month school year,” and “we would not be able to pay upfront the costs of tuition, related services, and special transportation at [Redacted] and wait to be reimbursed,” Ex. J, there is no evidence or testimony in this record that an enrollment contract was executed by the Parents for the 2022-2023 school year or that the Parents have any legal obligation whatsoever to [Redacted] for the costs of the enrollment. Nor was any such obligation even mentioned in the Parents’ post-hearing brief.^[1]

I find that the Parents having failed to prove any legal or financial obligation to [Redacted] for the 2022-2023 school year, I am compelled to find that the relief requested by the Parents, direct payment to [Redacted] for the cost of the Student’s 2022-2023 placement, is unavailable, and the Parents’ request must be denied.

The District additionally asserts that the Parents failed to establish that the [Redacted] placement was appropriate for the 2022-2023 school year.

The District concedes that a unilateral placement does not need to employ certified or licensed teachers and related service providers. However, Parents still have the burden of proving that the teachers and related service providers working with their Student have the skills, experience, and qualifications necessary to provide appropriate instruction and/or services to the Student. See Application of the New York City Department of Education, Appeal No. 20-062:

“10 Special education provider means "an individual qualified pursuant to section 200.6(b)(3) of this Part who is providing related services, as defined in paragraph (qq) of this section, to the student" (NYCRR 200.1[xx]).... As discussed herein, a provider at a unilateral placement need not meet state standards but must be able to adequately address the student's needs.... While a teacher at a unilateral placement need not be state-certified (Carter, 510 U.S. 7, 14 [noting that unilateral placements need not meet state standards such as state certification for teachers]), there must be objective evidence of special education instruction or supports that are specially designed by student's providers at the private school who have reasonable qualifications that are specifically related to the student's deficits (see Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 387 [2d Cir. 2014] [noting that general evidence regarding a student's psychological progress from a student's private counselor with a master's degree but who lacked certification in New York or his home state regarding was insufficient to support tuition reimbursement).” In this case, I agree with the District that the Parents did not present any evidence regarding the credentials or experience of the teachers or related service providers who instruct and provide services to the Student. While Ms. [Redacted] identified the Student’s classroom teacher by name, she was not able to identify the teacher’s credentials with certainty. See Tr. 83-84: 16-25; 1-7. Ms. [Redacted] also did not provide any information regarding the Student’s related services providers or their qualifications. In her affidavit, Ms. [Redacted] testified that the Student had been making progress in his academic and social domains, including related services, but stated that she does not oversee related services. Ex. I, ¶17, Tr. 109:10-12.

I likewise agree with the District that the Parents did not present evidence regarding the skills, experience, and/or qualifications of the people that [Redacted] employs, as a whole or in general, nor regarding those specifically providing instruction and services to the Student. Testimony on cross-examination only established that providers work with teachers to plan activities on a push-in or pull-out basis. See Tr. 97: 1-16. I find that this alone is insufficient to establish the requisite skills, experience, and qualifications of the providers and teachers and how they are able to support and offer appropriate services related this Student’s needs specifically. Based on the above, the Parents have not met their burden. See L.Q., 932 F. Supp. 2d 467 at 490:

“However, the IHO in her decision merely discussed that the Parent had contracted for this service and made no finding that Dr. Totora's counseling was adequate to meet Q.S.' social and emotional needs. There was no evidence was presented to establish Dr. Tortora's qualifications, the focus of her therapy, or the type of services provided. See generally R.S. ex rel. A.S. v. Lakeland Cent. Sch. Dist., 09 Civ. 9874(JGK), 2011 WL 1198458, at *5 (S.D.N.Y. Mar. 30, 2011), aff'd sub nom. R.S. ex rel A.S. v. Lakeland Cent. Sch. Dist., 471 Fed. Appx. 77 (2d Cir.2012) (Discussing the absence of evidence as to the nature and qualifications of private services obtained by parents for a student placed at Kildonan).”

This record is replete with long and comprehensive [Redacted] IEP’s, detailing in great depth the Student’s disabilities, daily activities, functioning, and with many charts and descriptions. However, there is a large gap in the Parents’ evidence – that is virtually no information about the personnel working with the Student – his teacher(s) and related services providers. The only indication of anything in that regard is Ms. [Redacted]’s terse statement in her affidavit that “[Redacted]’s support staff is provided with training to handle her [sic] unique conditions.” I agree with the District that the record is devoid of the information necessary to inform a determination as to whether the Student is getting appropriate instruction and therefore whether [Redacted] is an appropriate placement for the Student.

The District also contends that the Parents failed to show that the Student’s program at [Redacted] was individualized to meet the Student’s needs, which is part of the Parents’ burden. Gagliardo, 489 F.3d at 112:

In Frank G., we explained:... 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. 459 F.3d at 364–65 (citations and internal quotation marks omitted).”

See also Application of a Student with a Disability, Appeal No. 20-084. Specially designed instruction is defined as follows:

“(vv) Specially-designed instruction means adapting, as appropriate to the needs of an eligible student under this Part, the content, methodology, or delivery of instruction to address the unique needs that result from the student's disability; and to ensure access of the student to the general curriculum, so that he or she can meet the educational standards that apply to all students.” 8 NYCRR 200.1 (vv).

In this case, the record contains no testimony, via affidavit or otherwise, from a person with first-hand knowledge regarding how [Redacted]’s program for this specific student was created. Ms. [Redacted]’s affidavit contains general information regarding the Student, which merely lists the services he receives. However, Ms. [Redacted]’s affidavit does not state that she possesses any personal knowledge about the Student, does not reference any communications with specific teachers or related services providers who possess personal knowledge of the Student, or refer to her review of any documents containing current information about the Student. I find that this lack of evidence, coupled with the absence of any qualifications for the personnel who work with the Student, make it impossible to determine with any level of comfort that qualified personnel at [Redacted] constructed a valid program specifically for this Student reasonably intended to meet his educational needs. I find that a 106-page [Redacted] IEP, or even a 1,000 page IEP, which I find in the absence of credentialed or experienced providers presenting themselves for inquiry amounts to no more than a self-serving document, does not substitute for qualified witnesses who can testify and be cross-examined about the how’s, what’s and why’s of this Student’s program and instruction. Furthermore, the record contains no class schedule, and no progress reports written by the Student’s purported providers, and Ms. [Redacted], who testified that the Student attends in-person at [Redacted] only two days per week, Tr. 89:11-18, did not explain how the Student was receiving his five-times per week push-in related services. Also, Ms. [Redacted] testified that the Student was still considered to have attended [Redacted] on a day when the Student received neither in-person nor remote instruction, if the family requests a “home program,” with no explanation of how this “home program” is controlled, monitored or evaluated as part of the Student’s purported individualized instruction. Tr. 909-91, 14-25, 1-8.

The Student was also receiving music therapy at [Redacted], as part of his related services program. When asked what evaluations were conducted to show that the Student required music therapy as part of his related services program, Ms. [Redacted] responded with the following:

The assessment, I believe, is called the MCAT or – I could look it up. I think – I forget the initials. I think its I-M-P-A-P-P or C-A-P-P. I forget the exact. It’s a music therapy evaluation that they’ve adapted, I think, to suit our student population. Tr. 103: 12-17.

Ms. [Redacted] was not able to provide specific information about music therapy evaluations that are conducted for [Redacted] students (Tr. 103: 12- 17), nor was she able to describe what goals the Student is working on in music therapy aside from learning to greet people. See Tr. 104: 1-9. Ms. [Redacted] further confirmed that music therapy can be incorporated, and often is, into the Student’s other related services, (Tr. 105: 7-13), but there was no evidence or testimony presented by the Parents of a service provider with personal knowledge of the Student’s music therapy goals, to verify whether this related service is actually necessary, or to establish that this related service facilitates educational progress for the Student.

Ms. [Redacted] also testified at the hearing that the Student has a visual impairment. (Tr. 112:3-6). However, when asked what the Student’s diagnosis was regarding his visual impairment, Ms. [Redacted] confirmed that [Redacted] does not have a full diagnosis from a physician regarding the Student’s visual impairment. (Tr. 112: 9-21). Rather, [Redacted] only has documentation regarding the Student’s visual impairment created by its own providers, whose credentials remain a mystery.

Overall, I find that it is impossible to determine from this record how and whether the Student’s program actually addresses “cognition, language, memory, attention, abstract thinking, judgment, problem solving, sensory, perceptual and motor abilities, psychosocial behavior, physical functions, informational processing and speech.” Ex. A. [Redacted] may in fact be appropriate for the Student and the Student may be making progress. However, I find that the Parents have failed to prove, even by a preponderance of the evidence, that such is the case. I find that they did not prove that instruction was individualized for this Student by personnel with the credentials and/or experience to do so, and there are no formal progress reports form any providers, which would have at the very least have indicated the providers’ credentials.

I find that the Parents have therefore failed to meet met the second of the three Burlington/Carter criteria for tuition reimbursement.

The determination of whether or not equitable factors support a parent’s claim for tuition reimbursement hinges, in large part, on whether or not the parent cooperated with the CSE. The District did not raise any issues that would limit or preclude tuition/payment reimbursement. In fact, it did not oppose tuition payment/reimbursement on equitable grounds. Moreover, the testimony and documentary evidence make clear that the Parents cooperated with the CSE, were open to considering an appropriate District program and placement, voiced their concerns about the Student’s needs, and notified the District about their disagreement with the District’s program and placement and of their intention to unilaterally to place the Student at [Redacted]. Exs. G, J, 1.^[2]

Based on the foregoing, I find that equitable factors support the Parents’ claim for tuition payment/reimbursement for 2022-2023 school year, although for the reasons stated above that does not help the Parents in this case.

Based on the foregoing, I find that:

• • The District utilized its discretion to extend eligibility for special education services for this Student past his 21st birthday, for the 2022-2023 school year;
• • The District failed to provide or offer a FAPE for this Student for the 2022-2023 school year;
• • The Parents failed to establish that they are eligible for the relief requested, which is direct payment for the costs of tuition, related services, and special transportation for the 2022-2023 school year, as they did not prove that they incurred any legal or financial obligation for such costs;
• • The Parents failed to prove that [Redacted] is an appropriate placement for this Student for the 2022-2023 school year; and
• • Had the Parents otherwise prevailed, equitable considerations would have favored the Parents for tuition payment/reimbursement.

ORDER

Accordingly, it is hereby ORDERED that the Parents’ request for relief herein is denied in all respects, and the pendency order issued herein, dated August 31, 2022, is hereby terminated.

Dated: January 29, 2023

______________________________

Mitchell Regenbogen, Esq.

Impartial Hearing Officer

Appendix of Attendees (by telephone)

For the Parent:

[Redacted], Esq.

[Redacted], Parent

[Redacted], Witness

[Redacted], Observer

[Redacted], Observer

For the District:

[Redacted], Representative

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] It is also impossible to determine whether the Parents can afford to pay the [Redacted] tuition and other costs for the 2022-2023 school year, as the Parents presented no evidence of what those costs are.

[2] In its closing brief the District opposed the Parents’ request for an independent functional [Redacted] assessment on equitable grounds, but as the Parents’ did not make that request for relief in its closing brief I shall consider the request withdrawn and make no determination as to the District’s position.