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FINDINGS OF FACT AND DECISION
| Case Number: | 229267 |
| Student’s Name: | [Redacted] |
| District: | [Redacted] |
| Hearing Requested By: | Parents |
| Hearing Officer: | Martin J. Kehoe III, Esq. |
| Actual Record Close Date: | November 3, 2023 |
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 2020-2021 and 2021-2022 school years (“SYs”). The child’s custodian (“Parent”) filed the complaint notice on July 13, 2022. (Ex. A-1) I was appointed as the IHO on July 18, 2022. A hearing was held across multiple dates.[1] The Parents introduced exhibits A-AG into the record and called three (3) witnesses: the Head of School/Principal at the Private School (“the Principal”); the Student’s uncle/custodian and primary caregiver (“the Uncle”); and the Student’s mother (“the Mother”). The District did not offer any exhibits, nor did they have any witnesses testify on their behalf. Both parties submitted closing briefs which are included in the record as IHO #1 (the Parents) and IHO #2 (the District).
a. Parents’ Position
The Parents allege that the District failed to provide the Student a Free Appropriate Public Education (“FAPE”) for both the 2020-2021 SY and 2021-2022 SY. (Ex. A. 1-2). Specifically, the Parents claim that the Committee on Special Education’s (“CSE”) failed to produce a timely Individualized Education Plan (“IEP”) or a placement recommendation for both the 2020-2021 and 2021-2022 SYs amidst a residency dispute. The Parents describe this “failure [as] effectively den[ying] [the Student] a FAPE.” (Ex. A-2).
To remedy the above, the Parent seeks reimbursement for the tuition costs associated with the unilateral placement of the Student at the Private School during the 2020-2021 and 2021-2022 SYs. Additionally, Parent seeks a declaratory finding that the District failed to provide the Student with a FAPE for the 2020-2021 and 2021-2022 SYs. (Ex. A. 3-4).
b. District’s Position
The District did not present a Prong I case; however, they maintain that the Parents did not meet their burden of proof under Prong II. Lastly, the District maintains that the equities favor them. (Ex. IHO #2). The District claims that because the Mother’s name is on the contract, the Uncle—who filed the complaint—lacks the contractual obligation with the Private School, required for reimbursement. (Ex. IHO #2-4).
c. Background of the Case
On December 15, 2020, a CSE meeting was held to discuss the Student’s educational program for the remainder of the 2020-2021 SY, but the IEP was not developed for the Student due to a residency dispute. (Ex. A-2). The CSE subsequently reconvened on April 9, 2021, and created a Service Plan (“SP”)[2] for the Student, which held that the District would provide “special education service(s)” for the student while he remained enrolled in the Private School. On August 18, 2021, the Parents sent a ten day notice letter in which they informed the District of their plan to keep the Student enrolled at the Private School given the continuing lack of IEP or adequate public school placement. (Ex. E-1). On July 13, 2022 the Parents filed the complaint notice. (Ex. A-1).
d. Student History
The Student was [redacted] years old at the start of the 2020-2021 SY. He is described as a “bright boy” who comes across as “friendly [and] self-directed.” (Ex. A-2 & F-6). The Student has been diagnosed with Autism Spectrum Disorder (“ASD”), Attention Deficit Hyperactive Disorder (“ADHD”), oculocutaneous albinism and presents with a “significant visual impairment.” (Ex. A-1). Due to the lack of an IEP during either of the SYs in question, the Student did not carry a District recognized classification. A Neurodevelopmental Evaluation administered on August 8, 2020—prior to the start of the 2020-2021 SY and the Student’s placement at the Private School—affirmed that the Student did in fact have a “severe neurological impairment.” (Ex. G-1). This impairment includes the manifestation of ASD, ADHD, behavioral impairments, oppositional and defiant behavior, and severe aggressive behavior. The same evaluation states the Student struggles with prominent obsessive-compulsive symptoms and has “prominent mood dysregulation.” (Ex. G-1).
In the Student’s counseling progress report, the evaluator wrote that the Student is “eager to gain more knowledge and enjoys the learning process.” The Student completes his assignments promptly as assigned and likes receiving more work to stay busy. The Student has a history of “aggressive and highly disrupted behaviors.” (Ex. J-1). Academically, the Student enjoys writing and learns eight new vocabulary words a week. The Student uses the proper punctuation and capitalization in his sentence structure, but he often needs help from his teachers to separate his sentences. (Ex. J-8). The Student is continuing to master his math skills, a subject which he enjoys “tremendously,” and has become proficient in the multiplication tables. Additionally, the Student has demonstrated an understanding of decimals, mental multiplication, prime and composite numbers, and number factors. (Ex. J-10). Socially, while the Student “aims to please” he often struggles with how to best interact “appropriately with his peers.” The Student’s visual impairment also leads to sensory processing delays, “specifically proprioceptive input (body awareness arising from joints and muscles) as well as decreased balance, bilateral coordination, core strength and ‘fm’ skills.” All of these combined result in the Student sitting out of activities with his peers, such as sports and games. Additionally, by addressing the Student’s foundational skills, sensory impairments and body awareness, the counseling report predicts the Student could begin to master higher level skills that would include his overall classroom performance. (Ex. K-1).
On December 14, 2020, the Student underwent a neuropsychological evaluation in which he was described as a “friendly but self-directed child” who asked the evaluator personal questions about her religion and family. (Ex. F-1). The psychologist evaluated the Student with three tests during her examination – the Standford Binet Intelligence Scales (“Stanford test”), the Autism Diagnostic Observation Schedule (“ADOS”) and the Vineland Adaptive Behavior Scales (“Vineland test”) –and assessed that the Student appeared to have a high level of cognitive functioning based upon his test results. (Ex. F-1).
On the Stanford test the Student’s received five (5) descriptive classifications in the average range (Full IQ scale, Nonverbal IQ scale, Fluid Reasoning, Knowledge, and Working Memory). The Student was assessed as high average in the Visual Spatial category and superior in both his Verbal IQ and Quantitative Reasoning. (Ex. F-1).
On the ADOS test, the Student received a comparison score of 8, which compared to other children his age suggests a “high level of autism spectrum -related symptoms.” The evaluator was particularly concerned with the quality of social overtures made by the Student during the evaluation, with his tone being described as “odd and stereotypical with his speech production stilted.” (Ex. F-4). The Student demonstrated limited creativity and did not want to engage with the evaluator when she asked if she could join in. (Ex. F-4).
On the Vineland test which was specifically testing his Adaptive Behavior, the Student received a standard score of 64 placing him in the 1st percentile. In Communication and Daily Living Skills received scores of 76 and 70 respectively, corresponding to being the 5th and 2nd percentile. The evaluator describes these domains as areas of relative strength for the Student. In the Socialization category, the Student received a standard score of 42, placing him in the <1st percentile. The evaluator describes this domain as a relative weakness for the Student. (Ex. F. 5-6).
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).[3]
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] Committee on Special Education’s (“CSE”) failure to offer [the Student] a procedurally valid and substantively appropriate IEP and placement recommendation in a timely manner for the 2020-2021 and 2021-2022 school years . . . The CSE’s failure to conduct and consider sufficient evaluations . . . The CSE’s failure to obtain sufficient clinical data to support its recommendations . . . The District’s failure to meaningfully include the parents throughout the educational process . . . The CSE’s failure to provide [the Student] with a free and appropriate public education in compliance with the Individuals with Disabilities Education Improvement Act of 2004 (“IDEA”), New York State Education Law, and Section 504 of the Rehabilitation Act of 1973. (Ex. A-1).
I am the uncle and guardian of [the Student] []. I currently have shared residential custody of [the Student] with his mother (my sister). [The Student] first began living with me at [] during the Summer of 2019 and continued to live with me during the 2020-2021 and 2021-2022 school years. When [the Mother] became ill and hospitalized, I began assisting her in taking care of [the Student] as I provided him with food, shelter, and clothing during this time. I exercised control over [the Student’s] daily activities and behavior. Additionally, I have also assisted [the Mother] in obtaining appropriate special education services for [the Student] in New York City as she requires support due to her on-going illness. (Ex. AE-1).
Instead, on December 15, 2020, the CSE held a meeting and at that time, and incorrectly determined [the Student] was not eligible for an IEP and public-school placement because his mother resided in New Jersey. Both [the Uncle] and [the Mother]. Informed the CSE that [the Student] resides [with the Uncle]. We also provided the CSE with copies of custody orders confirming this. However, the CSE refused to offer my nephew an IEP and special education placement. (Ex. AE-1,2).
On April 9, 2021, the CSE convened again, and created a "Services Plan" for [the Student] which recommended he receive Vision Education Services (3x30, l : l ); Physical Therapy (2x.30, 1:1), Occupational Therapy (2x.30, 1:1) Counseling (lx30, 1:1; lx30, group service) Speech-Language Therapy ( l x30, 1: l; l x30, group) and a l : 1 health paraprofessional. The Services Plan indicated that it was for "Students Attending Private School In New York City and Residing Out of New York State." At the start of the meeting, the District Representative stated she was informed by her supervisor to create a Services Plan. I (along with [the Mother]) again informed the CSE that [the Student] is a New York City resident and resides with me. However, this information was not considered during the meeting. We informed them that we fundamentally disagreed with the Services Plan as [the Student] is a New York City Resident and he requires a full-time special education placement that can appropriately address all his needs. (Ex. AE-2).
The complaint elaborated on these issues, stating that when the CSE did hold a meeting on December 15, 2022, they ruled [the Student] ineligible “for an IEP and special education placement because his mother lives in redacted.” (Ex. A-2). Despite the Parent’s informing the District that the Student resided with his Uncle within the District confines on multiple occasions, the District did not produce a valid IEP for either of the SYs in question, nor did they provide a public school placement. I note for the record, that on August 18, 2022, the Commissioner of Education ruled that the Student did in fact satisfy the residency requirements of the District enough to attend “[the District]’s schools tuition-free]. (Ex. AB-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 v. Weast, 546 U.S. 49 at 537 (2005).
The District conceded Prong I to the extent that they did not defend or dispute the absence of 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, and the rationale employed by the District.
The Uncle – Testimony
The Uncle explained how the District failed to convene and how they informed the District of unilateral placement:
On July 28, 2020, we contacted the CSE referring his case for an initial IEP and placement. In August 2020, the CSE scheduled an interim service plan but later canceled this meeting and failed to reschedule it. Therefore, we sent two letters (one of which was through our attorney) to the district dated August 25, 2020 and November 25, 2020. In these letters, we indicated our concerns that an IEP meeting had not been held and we were not offered a public-school placement. In these letters, we further indicated our intent to enroll [the Student] in the [Private School] in the event the district failed to develop an IEP and offer a public-school placement. We further indicated, that in that instance we would be seeking public funding for this school for the 2020-2021 school year. We did not receive a substantive response to the concerns about a lack of IEP and public-school placement. (Ex. AE-1).
The Uncle shared concerns with the public placement and services planning:
Both [the Mother] and I did not agree with the Services Plan as it did not provide for a self-contained classroom which [the Student] required at the time, nor did it include adequate interventions and strategies particularly in terms of his behavioral and social/emotional needs.
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 his individualized needs. I, therefore, rule for the Parents on Prong I for both the 2020-2021 SY and The 2021-2022 SY..
IV. Prong II
a. Legal Issue: Did the Parents Establish the Appropriateness of the Private School?
i. Legal Standard
I now consider whether the Parents met their burden of proving the appropriateness of the unilateral placement of the Student at the Private School. 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, 459 F.3d 356 [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 Principal of the Private School – Testimony
The Principal testified on behalf of the Parents and described the programming designed for the Student at the Private School, as well as why he believed the Private School to be an appropriate placement for the Student. The Principal began his testimony be explaining some of the challenges the Student faced when he initially arrived at the Private School:
He is a bright student, hard worker and is eager to learn. However, he presented with a variety of behavioral, emotional, and social delays that negatively affected his performance in an academic setting. At the start of the 2020-2021 school year, [the Student] engaged in school refusal and avoidance. When he arrived at school, he would refuse to engage and participate in class. At times he would avoid going to class all together. He would also shutdown, cry, put his head down or leave the work area. He also had a history of engaging in aggressive and disruptive behaviors . . . When presented with a challenging task, [the Student] had difficulties expressing himself in an appropriate manner to his teachers and providers and would sometimes shut down. (Ex. AF-2).
The Principal went on to discuss some of the features of the Student’s academic programming at the Private School. For the 2020-2021 SY, the Student was placed in a classroom with eight total students, one teacher and two teaching assistants. The Student was also provided a 1:1 paraprofessional. The Principal testified that the small class size allowed the Private School to “provide a considerable amount of individualized behavior support, as well as 1:1 and very small group instruction.” (Ex. AF-3). The Student had a similar classroom dynamic during the 2021-2022 SY, that year being placed in a class with six total students, one teacher, one teaching assistant while retaining his individual paraprofessional. The consistency of the program allowed for the implementation of appropriate goals for both the group at large and the Student individually. (Ex. AF-3). The Principal explained how the Private School created a points based behavioral goal system for the Student to both incentivize good actions while also measuring progress. Speaking on its efficacy, the Principal stated:
The total number of points [the Student] earned during the 2020-2021 and 2021-2022 school years was based on calculating the net positive and negative feedback he received. Each week, the total number of points earned was reviewed . . . He started the 2020-2021 year with a goal of 42 points per period. If he met this goal, the period was considered successful for him. He ended the year with 55 points per period, showing progress evidencing progress as we were able to increase the number of points he was required to learn. For the 2021-2022 school year, he started the year with 12 points per period and ended the year with 19 points per period, again evidencing progress. While the overall number of points earned was less compared to the 2020-2021 school year, this was the case for all our students as we decided to narrow and define goals more specifically. (Ex. AF-4).
The Principal also spoke at how the programming provided by the Private School helped the Student improve academically. At the onset of the 2020-2021 SY, the Student tested at a mid-7th grade level in vocabulary and ended the year at a late 8th grade level. Similarly, the Student began the year at a mid 7th grade level in Literature grade and finished the year at an 8th grade level. The trend continued with Comprehension of Informational text, with the Student beginning at an early 7th grade level and concluding at an early 8th grade level. (Ex. AF-5). During the 2021-2022, these skills all improved an additional grade level. (Ex. AF. 5-6). Over the two SYs, the Student’s writing skills improved from a beginning 5th grade level to a 7th grade; he additionally gained the ability to write a four-paragraph essay, a biography and autobiography, and use complex sentence structure with adjectives and pronouns. (Ex. AF-6). The Student entered the Private School with already strong enjoyment of math and the Principal described the subject as “a strength for him.” The Principal described the Student’s 2020-2021 math progress on the record:
By the end of the 2020-2021 school year, [the Student]’s math abilities grew tremendously as he was able to multiply rational and irrational numbers, demonstrated an understanding of positive and negative integers, was able to compute unit rates as ratios involving fractions, and mastered solving word problems involving multiplication of fractions and mixed numbers. (Ex. AF-6).
Following up on additional math progress made during the 2021-2022 SY, the Principal explained:
. . . [The Student] continued with quickly mastering many higher-level math concepts and skills. [The Student] began the 2021-2022 year around above grade level in Numbers and Operations. Algebra early-8th grade level and progressed to a late 8th grade level, Measurement skills he progressed from a mid 8th grade level and ended the year above grade level and ended the year above grade level and in terms of Geometry he progressed from a mid-8th grade level to a mid-9th grade level . . . By the end of the year he was able to solve real-world problems containing equations with squares, cubes and square roots and cube roots, had an understanding of scientific notations, was able to solve problems involving linear equations, and was able to analyze data on graphs. (Ex. AF-7).
The Principal also provided testimony on the extent of counseling and therapy services the Private School provided to the Student. The Private School provided the following services to the Student: Counseling services (1x30, 1:1 and 1x30, group), Speech Therapy (“ST”) (1x30, 1:1 and 1x30, group) and Occupational Therapy (“OT”) (2x30, 1:1). All of these services were administered by properly credentialled and NYS licensed professionals. (Ex. AF-7). The Counseling services proved effective for the Student, as he became “calmer when attempting to express himself, he was able to think more rationally when interacting with his peers and teachers when upset and understood how to brainstorm when faced with a problematic situation” following the conclusion of the 2021-2022 SY. During the 2020-2021 SY, the Student received OT in which he “made measurable progress throughout the year as he improved his endurance, overall core strength, and balance and bilateral coordination.” 2021-2022 saw more improvement in OT, as the Student’s “sensory seeking behaviors decreased” with his core strength improving. (Ex. AF-8). During the 2020-2021 SY the Student also made progress with ST, by the end of the year improving his ability to “leave out extraneous details, improved his pitch as he had a high tone, and improved in his turn taking abilities.” (Ex. AF. 7-8).
The Principal stressed the success the Student had at the Private School due in large part because of the individualized programming designed to address the student’s challenges and reinforce his strengths. Giving his opinion on the appropriateness of the Private School for the Student, the Principal stated:
[The Private School] was an appropriate program for [the Student] for the 2020-2021 and 2021-2022 school years. We created an individualized program tailored to meet his needs in all areas. As a result, he made progress across all domains, as described above. (Ex. AF-9).
This concludes the Principal’s testimony. Next, I move onto the Student’s mother.
The Mother – Testimony
The Mother also spoke to the strength of the programming at the Private School, stressing the improvement her son had made during his time there:
During the 2020-2021 and 2021-2022 school years, [the Student] made steady progress at the [the Private School]. For instance, [the Student] moved along nicely in his math abilities, improved in expanding his writing skills, and improved in his ability to participate in a group and engage in conversations. He learned how not to interrupt his teachers and improved in his frustration tolerance. He also learned how to write essays, increased his vocabulary, and mastered most of his math goals. (Ex. AG-2).
iii. Conclusion
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[4]). 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 (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 Uncle, who was working in unison with the Mother, initially sent the CSE Chairperson a letter on July 27, 2020, referring the Student to the CSE for the creation of a special education program. (Ex. B-1). This letter was followed up with subsequent communication requesting the same meeting be convened, while also informing the District that in the absence of an adequate educational plan, the Student would be enrolled at the Private School.
On November 25, 2020, the Parents sent a ten-day notice letter, expressing their intent to unilaterally place the Student at the Private School for the 2020-2021 SY. In the letter, the Parents informed the District that he would seek funding from the District for the placement unless an appropriate public school placement was offered. (Ex. D-1). The following year, following the District not providing a valid IEP for the 2021-2022 SY or an appropriate public school placement, the Parents sent another ten-day notice letter on August 25, 2021. They informed the District again of their desire that an IEP be created, or an appropriate placement be offered, but in the absence of such provisions the Student would remain enrolled in at the Private School for the upcoming SY. (Ex. E. 1-2).
Furthermore, the Mother’s inability to afford the complete tuition for the relevant SYs at the institution in question does not prevent her from seeking assistance. The testimony and evidence established that the parent is not in a financial position to pay the cost of the school’s tuition without financial hardship. (Ex.s AD & AG). Nevertheless, since the Student’s mother signed the tuition contracts, she has undertaken both financial and legal obligations regardless of the outcome of this impartial hearing. (IHO #1-12).
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 directly pay/reimburse the Private School/Parents for cost of tuition at the Private School, where they unilaterally placed the Student for the 2020-2021 and 2021-2022 SYs upon the presentation of invoicing for same..
Dated: November 3, 2023
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: August 31, 2022; December 2, 2022; January 12, 2023; March 1, 2023; April 4, 2023; June 1, 2023; and June 15, 2023.
[2] The CSE team’s SP did not recommended the Student be placed in any specialized classroom setting. the team recommended the following related services: Vision Education Services (Individual, 2 x 30); Physical Therapy (Individual, 2 x 30); Occupational Therapy (Individual, 2 x 30); Counseling (Individual, 1 x 30)(Group Service, 1 x 30); Speech-Language Therapy (Individual, 1 x 30)(Group Service, 1 x 30); and an individual (1:1) health paraprofessional. (Ex. A-2).
[3] “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).
[4] § 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 (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))