New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 576868 NYC: 229475

FINDINGS OF FACT AND DECISION

Student’s Name: [REDACTED], (“Student”)

Date of Birth: [REDACTED],

District: New York City Department of Education (“DOE” or the “District”)

Hearing Requested by: [REDACTED], [REDACTED], on behalf of [REDACTED], (the “Parents”) and the Student

Record Close Date: June 20, 2023

Hearing Officer: Randy Glasser, Esq.

On July 21, 2022, [REDACTED], [REDACTED], filed a due process complaint (“DPC”) on behalf of the Parents and their child, the Student, regarding her special education program and services for the 2021/2022 school year, pursuant to the Individuals with Disabilities Education Act (the “IDEA”) (Parent Ex. “A”). This Hearing Officer was appointed as the Impartial Hearing Officer (“IHO”) on August 22, 2022. A hearing was held on September 30, 2022, and status conferences on October 25, 2022, November 28, 2022, January 5, 2023, February 1, 2023, and March 2, 2023. The Hearing went forward on March 28, 2023 and April 20, 2023, at which District Representative, [REDACTED], appeared for the District, and [REDACTED], [REDACTED], appeared for the Parents and Student.

The District put on a direct case and submitted District Exhibits “1” through “9” into evidence. The Parents put on a direct case and submitted Parent Exhibits “A” through “G” into evidence, which were comprised in part of one (1) affidavit for [REDACTED], Special Education Coordinator at [REDACTED] a/k/a [REDACTED], (the “School”) (“Special Education Coordinator”) (see Parent Ex. “G”). Pursuant to this IHO’s direction, the parties submitted written Closing Statements (see: IHO Ex. “I” and “II”). The compliance date for this matter has been extended to July 5, 2023 (IHO Ex. “III”).

BACKGROUND AND POSITIONS OF THE PARTIES

The Student is [REDACTED] ([REDACTED]) years old and classified as a student with a Learning Disability (DOE Ex. “1”). On the Wechsler Abbreviated Scale of Intelligence – Second Edition (WASI-II) she earned a full-scale IQ score of 105 (Average), an 88 on overall reading which fell within the low average range and a 90 for overall math which fell within the average range (DOE Ex. “2” at pp. 2-3). The Special Education Coordinator testified in relevant part:

14. During the 2021-2022 academic year, [the Student], a [REDACTED]year-old student, presented with a variety of challenges and delays that impacted her educational progress.

She presented with substantial academic delays, especially in her math, reading comprehension, pace of reading, writing speed, spelling, punctuation, pre-writing skills, oral comprehension, and vocabulary. She also presented as friendly, but not participatory in class discussions. She struggled with expressive, receptive, and social pragmatic language skills, including difficulty with word retrieval and retelling details of a story, as well as with expression while reading aloud. Her vocabulary is very limited.

15. She could not construct a paragraph to describe an event or an episode from the material she just read. She was not able to solve math problems. She also struggled with functional tasks, including study skills, organizational skills, and executive functioning skills. She struggled with attention and sitting in class. She presented with the inability to take in information, process it, manipulate it, and produce new information.

(Parent Ex. “G”).

The Student’s Individualized Education Program (“IEP”) dated January 4, 2022, recommends the following ten (10) month special education program and services: Integrated CoTeaching (“ICT”) class for English Language Arts eight (8) times per week, one (1) period per session, Math eight (8) times per week, one (1) period per session, Social Studies four (4) times per week, one (1) period per session, and Science four (4) times per week, one (1) period per session, along with individual counseling one (1) time per week, thirty (30) minutes per session (DOE Ex. “1”).

The Parents unilaterally placed the Student at the School for the 2021/2022 school year, for which they are now seeking the District’s direct funding for the Student’s tuition and related services^[1] (Parent Ex. “A”; Tr. at p. 87).

The Student’s eligibility and classification are not at issue in this case.

FINDINGS OF FACT AND DECISION

A. Introduction: The IDEA provides that children with disabilities are entitled to a free appropriate public education (“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 comprehensively written IEP (Id., 20 U.S.C. §1414(d); 34 C.F.R. § 300.17). 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 (c) reasonably calculated to enable the student to receive educational benefits. Board 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, 137 S. Ct. 988 (2017).

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 the 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)).

The IDEA empowers a hearing officer to grant the relief he/she deems appropriate. 34 CFR §300.516(c)(3). One such remedy is reimbursement of tuition and related expenses. Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); Burlington Sch. Comm. v. Mass. Dep’t. of Educ., 471 U.S. 359, (1985). Notably, the mere fact that the state educational agency and/or local educational agency (“LEA”) has not approved the private school placement does not bar the parents from reimbursement. Florence County Sch. Dist. Four v. Carter, supra.

The District called one (1) witness on its direct case, school psychologist, Chana Rosen (“School Psychologist”) who testified in relevant part that she chaired the CSE meeting held for the Student on January 4, 2022 (Tr. 100), the documents and reports relied upon by the CSE (Tr. 102-105), the scores and findings in her psychoeducational evaluation of the Student, e.g., that she struggles in reading comprehension, spelling and math fluency (Tr. 106-108, DOE Ex. “2’), how the recommendations of the CSE supported the Student’s areas of need e.g., Integrated CoTeaching (“ICT”) class (Tr. 109-110), the other classes considered by the CSE and that the ICT class was the least restrictive environment that was appropriate for the Student (Tr. 111-112), she reviewed prior psychological evaluation(s) of the Student when she conducted the evaluation (Tr. 115), she has observed a public school ICT class but does not remember when, and its makeup (Tr. 117-118), does not know why the IEP was created on January 4, 2022, the start date was February 18, 2022 and the letter went out regarding the Student’s placement on March 9, 2022 (Tr. 119) and she explained why counseling was recommended for the Student (Tr. 120).

The Parents presented two (2) witnesses on their direct case, the Parent, and the Special Education Coordinator. The Parent testified in relevant part that the Student does not have any official diagnoses, but her teachers have told the Parent that she has a processing disorder (Tr. 136), the Student’s academic challenges (Tr. 137), the Student’s educational background, including when she received special education teacher support services (“SETTS”) (Tr. 137-139), the Student recognized she was struggling from [REDACTED] through [REDACTED] grade and refused to do schoolwork (Tr. 140), the Student’s social skills at the end of eighth grade (Tr. 140), the options the Parents looked into for the Student for [REDACTED] (Tr. 141), the Parent contacted the New York City Department of Education in 2021 and asked them to open a case for the Student (Tr. 141), the meeting held on January 4, 2022, and the recommendations made by the CSE (Tr. 141-142), she did not receive the placement letter until two (2) months after the CSE meeting (Tr. 142), she reached out to the placement recommended by the CSE and why she felt it was not appropriate (Tr. 142-143), the Student attended the School during the 2021/2022 school year and how she did (Tr. 143), the contact she had with the Student’s teacher at the School (Tr. 144), the Student brought home homework that she either understood or was willing to learn if she did not understand (Tr. 144), the Parent saw a tremendous difference in the Student when she attending the School during the 2021/2022 school year, e.g., the Parent saw a boost in the Student’s confidence, and she was involved in class and group activities (Tr. 144-145), pursuant to Parent Ex. “B” and “C”, the Parents owed $80,000 (of which they paid $5,000.00) to the School for the Student’s tuition which they cannot afford because they earn less than that amount (Tr. l45, 147), why the family is on Medicaid assistance, the Parents signed the contract with the School in November 2021, which when the Student transferred to an ICT class in November 2021 (Tr. 147-148, 150, 159-161).

In addition to the testimony contained in the Special Education Coordinator’s Affidavit at Parent Ex. “G”, she testified in relevant part regarding paragraph “3” (Tr.162-163), paragraph “5” (Tr.163-164), paragraph “7” (Tr. 165-166), related services the Student received at the School during the 2021/2022 school year (Tr. 167-168), paragraph “14” (Tr 168-171), the IEP Team meeting held on January 4, 2022, and why she disagreed with the recommended ICT placement (Tr. 171-172,175, 178), she is a certified general and special education teacher with the State of New York (Tr. 176-177), how long she was a special education teacher for the New York City Department of Education (Tr. 178), and the Student’s reading level (Tr. 179-180).

The District did not present any rebuttal witnesses (Tr. 180).

B. Tuition Reimbursement: A board of education may be required to pay for educational services obtained for a child by the child's parent(s), (1) if the services offered by the board of education were inadequate or inappropriate, (2) the services selected by the parent were appropriate, and

(3) equitable considerations support the parent's claim (Burlington Sch. Comm v. Mass. Dep’t. of Educ., supra; Florence County Sch. Dist. Four et al. v. Carter, supra; see also Frank G. and Dianne G. v. Board of Educ. of Hyde Park, 459 F.3d 356 (2d Cir. 2006), cert denied, Board of Educ. of Hyde Park Cent. Sch. Dist. v. Frank G., 2007 WL 2982269 (2007). Accordingly, the above-stated three (3) prong analysis (the “Burlington/Carter Criteria”) is applied to determine whether the board of education is required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents. Id.

Decisions of impartial hearing officers must be on substantive grounds based on a determination of whether the student received a FAPE (8 NYCRR § 200.5(j)(4)(i). The inquiry made pursuant to the first prong, may go beyond the appropriateness of the student’s IEP and/or placement and encompass other FAPE claims (see 20 USC §1412(a)(10)(C)(ii); 34 C.F.R. §300.148(a) and (c); Forest Grove v. T.A., 557 U.S. 230 (2009); P.C. Oceanside Union Free Sch. Dist., 818 F. Supp. 2d 516 (E.D.N.Y. 2011); Mr. N.C. v. Bedford Cent. Sch. Dist., 300 F. App’x

11 (2d Cir. 2009). To determine whether the school district made a FAPE available to the student in a timely matter, Rowley’s two-part test, as modified by Endrew F. v. Douglas County Sch. Dist., RE-1, supra, for appropriateness should be applied. Specifically, the hearing officer must determine whether the school district complied with the procedural requirements of the IDEA and IEP is reasonably calculated to enable the child to make appropriate progress in light of her circumstances. Id. “An appropriate educational program therefore begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services.” (See Application of the Dept. of Educ., Appeal No. 07-018 (2007)). Thus, the annual goals and short-term objectives should be consistent with, and relate to, the identified needs and abilities of the student. See Application of a Student with a Disability, Appeal No. 14-078 (2015) (citing 20 U.S.C. § 1414(d)(1)(A)(i)(II); 34 CFR § 300.320(a)(2)(i); 8 NYCRR § 200.4(d)(2)(iii)).

While the Second Circuit has emphasized that school districts must comply with a checklist of procedures for developing a student’s IEP, the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA. See A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 (2d Cir. 2009). Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies: (a) impeded the student’s right to a FAPE; (b) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student; or (c) caused a deprivation of educational benefits to the student (20 U.S.C. §1415(f)(d)(E)(ii); 34 C.F.R. §300.513(a)(2); 8 NYCRR §200.5(j)(4)(ii)).

The District argues in its closing statement that the program offered to the Student would have provided the Student with a FAPE and that because the District sent out the Prior Written Notice and School Location letter approximately thirty (30) days after the sixty (60) school day time period had expired (between when the Parent made a request for special education services for the Student, and the District implemented a program), this procedural error did not result in a denial of FAPE, because the Parents “were free to enroll their child in that school” identified in the Prior Written Notice and School Location letter, and that it would have been impossible for the District to offer a location at the beginning of the 2021/2022 school year because the Parents only requested an IEP in November of that school year (see IHO Ex. “I”).

While the Parents allege in their DPC and Closing Statement that the District failed to provide a FAPE to the Student because she transitioned to High School in the fall of 2021 with no current evaluations and no, up to date IEP or IESP 2, and it took approximately two (2) months from when the CSE meeting was held on January 4, 2022 to March 9, 2022 for the Parents to receive a placement letter from the District (Parent Ex. “A”, DOE Ex. “8”, IHO Ex. “II”, and see Infra).

Implicit in the District’s argument is that “it would have been impossible for the Department to offer a location [e.g., special education program pursuant to an IEP], at the beginning of the [2021/2022] school year because Parents only requested an IEP in November [2021]” is that the Student had to either be enrolled in the District or something similar must have, occurred prior to the Parent’s November 2, 2021 letter in order for the District to be obligated to provide the Student with a FAPE at the start of the 2021/2022 school year. However, the District failed to provide a legal basis for such argument e.g., that it was divested of its obligation under the IDEA to develop an IEP for the Student, despite the Parents’ failure to file the June 1st letter pursuant to 3602-c of the Education Law and knowledge from prior school years when it developed an IESP, that the Student required special education services (see 34 CFR 300.323(a); 8 NYCRR 200.4(e)(1)(ii) cf. E.T. v Bd. of Educ., 2012 WL 5936537, at *15 (S.D.N.Y. 2012) (noting that "the issue of parental intent vis-àvis the child's enrollment is not dispositive of whether a school district has a s FAPE obligation to a disabled child")). Thus, the first issue to resolve is whether the District’s obligation to provide the Student with a FAPE for the 2021/2022 school year began in September 2021 or later e.g., when the Parents filed the November ^[2], 2021 letter with the District.

It is undisputed that at all times relevant to this dispute the Student was a resident of the District (Parent Ex “A”). In this regard, Education Law § 3202(1) provides that "[a] person over five and under twenty-one years of age who has not received a high school diploma is entitled to attend the public schools maintained in the district in which such person resides without the payment of tuition." Even though state regulation contemplates that parents will request that districts enroll students prior to their attending, parents are not required to make such request on an annual basis (8 NYCRR 100.2(y)(3)).

A board of education must offer a FAPE to each student with a disability residing in the school district who requires special education services or programs (20 U.S.C. § 1412(a)(1)(A); Educ. Law § 4402(2)(a), (b)(2)). In addition, under New York State law, parents of a student with a disability who have privately enrolled their child in a nonpublic school may seek to obtain educational "services" for their child by filing a request for such services in the district of location where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made (Educ. Law § 3602-c(2)). "Boards of education of all school districts of the state shall furnish services to students who are residents of this state and who attend nonpublic schools located in such school districts, upon the written request of the parent" (Id.)). In such circumstances, the district of location's CSE must review the request for services and "develop an [IESP] for the student based on the student's individual needs in the same manner and with the same contents as an [IEP]" (Educ. Law § 3602-c(2)(b)(1)). The CSE must "assure that special education programs and services are made available to students with disabilities attending nonpublic schools located within the school district on an equitable basis, as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools located within the school district (Id.). In the instant case, the Student was unilaterally placed by her Parents in nonpublic schools when, at least for the 2019/2020 and 2020/2021 school years she received SETSS pursuant to an IESP^[3] (see also: Tr. 137, 140). However, there was no testimony/evidence submitted proving whether or not the Parents filed the requisite June 1st letter pursuant to 3602-c of the Education Law for school years prior to 2021/2022. However, it is clear that such letter was not filed for the 2021/2022 school year and that an IESP was developed dated November 29, 2019 (see: Infra).

Nonetheless, even if Student was not officially enrolled in the district, courts have recognized that a district's duty to offer the student a FAPE is triggered by the student's residency in the district, not the student's enrollment status or the parent's intent (see E.T. v. Bd. of Educ., 2012 WL 5936537, (S.D.N.Y. 2012) (noting that "residency, rather than enrollment, triggers a district's FAPE obligations" and "the issue of parental intent vis-à[-]vis the child's enrollment is not dispositive of whether a school district has a FAPE obligation to a disabled child") (internal quotations omitted)). Thus, a district of residence has an obligation to provide a FAPE to a resident student with a disability that does not end with the enrollment of the student in a nonpublic school (see Doe v. East Lyme Bd. of Educ.,790 F.3d 440, 450-51 (2d Cir. 2015); E.T., 2012 WL 5936537; see also N.B. v. Hellgate Elementary Sch. Dist., 541 F.3d 1202, 1209 (9th Cir. 2008) ("A school district cannot abdicate its affirmative duties under the IDEA")).

Based upon the foregoing, the Student has been a resident of the District at all relevant times for these proceedings, and the District has failed to give any authority to support its position that it was not obligated to provide the Student with a special education program and related services pursuant to an IEP at the start of the 2021/2022 school year, especially in light of the fact that it took until on or around March 9, 2022 for it to send the Prior Written Notice and School Location letter. Thus, as more fully explained below, the District violated its obligation to provide the Student with a FAPE for the 2021/2022 school year.

As aforementioned, the District asserts that its procedural violation, e.g., failure to implement the Student’s IEP no later than sixty (60) school days, after the Parents’ November 2, 2021 letter (requesting the District evaluate and provide an IEP for the Student), or on or about February 4, 2022, does not render the IEP inappropriate under the IDEA (IHO Ex. “I” at p. 2). To the contrary, since such violation (a) impeded the Student’s right to a FAPE because the District failed to even offer to provide related services and/or a program until March 9, 2022, approximately, six (6) months after the 2021/2022 school year had begun, (b) significantly impeded the Parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE for the Student, because a CSE was not held until January 4, 2022, or approximately four (4) months after the 2021/2022 school year had begun, at which such decision-making process was engaged in, and (c) caused a deprivation of educational benefits to the Student because services were not even offered to the Student until on or around March 9, 2022. Thus, the District’s procedural violation was substantial and resulted in its failure to provide a FAPE to the Student for the 2021/2022 school year pursuant to §1415(f)(d)(E)(ii); 34 C.F.R. §300.513(a)(2); 8 NYCRR §200.5(j)(4)(ii)). ^[4]

Notably, the District’s argument that when the Parents received the school location letter dated March 9, 2022, they were “free to enroll their child in the school” and any argument by the Parents that a transfer midyear did not make sense because they transferred their child from one program to another in November 2021 is spurious. First, when the Student changed from the general education to the ICT class at the School, she did not change the actual class or the teachers in the class, rather only her designation in the class as a special education instead of a general education student (see: Infra; Tr. 160-161, Parent Ex. “G” at ¶12). Moreover, this transfer was at the beginning of November 2021, or two (2) months after the school year had begun versus in March 2022, which was approximately six (6) months after the school year had begun. Thus, a transfer from the School to the District’s recommended program would have been quite different from the Student’s transfer from the general education class to the ICT class, and the Parents’ argument in this regard does in fact make sense.

Since the District has failed to satisfy the first prong of the Burlington/Carter criteria, the burden shifts to the Parents to prove that the unilateral placement was appropriate or proper. Burlington Sch. Comm., 471 U.S. at 369 and 370; see also Florence County Sch. Dist. Four et al.

v. Carter, 510 U.S. at 15. In order to meet this burden, the Parents 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)). In this regard, the court in Gagliardo explained:

No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. Id. at 112 (quoting, Frank G., 459 F.3d at 364-65). However, the private school placement “need not meet the IDEA’s definition of a free and appropriate public education” or “state education standards or requirements” (Frank G. v. Board of Educ., at 364). Moreover, 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. Id.

In the instant case, the testimony and documentary evidence support the Parents’ claim that the Student’s placement at the School provides her with educational instruction that is specifically designed to meet her unique special education needs, supported by such services that are necessary to permit him to benefit from instruction and established that the Student has, in fact, made meaningful progress at the School. In this regard the School’s Special Education Coordinator testified regarding her familiarity with the Student and challenges and delays at the beginning of the 2021/2022 School Year (Parent Ex. “G” at ¶¶12-15), how these needs were addressed by the School (Id. at ¶16), the classes she attended and how they were chosen based upon her educational needs and the support she required in each class (Id. at ¶¶17-20, 22), the supports and accommodations she received in her general education classes (Id. at ¶21), the Student’s reading skills at the beginning of the school year, how they were addressed during the school year, and improvement in her reading skills by the end of the school year (Id. at ¶¶24-26), the Student’s math skills at the beginning of the 2021/2022 school year, how they were addressed during the school year and her math skills at the end of the school year (Id. at ¶¶27-29) (see also: Teacher Progress Report regarding how the School addresses the Student’s areas of weaking in math and reading (Parent Ex. “F”) ^[5].

The Parent provided the following testimony regarding the Student’s progress in the program at the School during the 2021/2022 school year: [REDACTED]: Okay. And how did she do in that class? [PARENT]: She was -- I have never seen her that confident. She was doing very well. Her grades were up tremendously. She passed almost all tests. She did very well actually. [REDACTED]: Okay. And were you able to speak with her teachers and get reports in terms of how she was doing? [PARENT]: Yes. That was the upside of having the very small group of kids as opposed to the 35 because I had direct contact constantly with her teachers. [REDACTED]: And did she ever bring home homework? Did you ever observe her doing work for school? [PARENT]: Yes, I did. [REDACTED]: And did she seem to understand the material and keep up with it? [PARENT]: She did. And even if she didn't, she was willing to learn.

She no longer had that mindset of I'm going to fail anyway. [REDACTED]: And how did she do socially last year? [PARENT]: Can you repeat that? [REDACTED]: How was she doing socially last year, '21/'22? [PARENT]: So there was a tremendous difference socially as well. Because she was doing a lot better, I saw her confidence boost tremendously. She was involved in class activities, involved with the group activities. She definitely did better (Tr. 143-145).

The final criterion or third prong for a reimbursement award is that the Parents' claim must be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 374 (1985); R.E. v. New York City Dep't of Educ., 694 F.3d 167, 185, 194 (2d Cir. 2012); M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 (2d Cir. 2000); see Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 at 16 (1993) ("Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable")).

The IDEA also provides that reimbursement may be reduced or denied when parents fail to challenge the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412(a)(10)(C)(iii); 34 CFR 300.148(d); see S.W. v. New York City Dep't of Educ., 646 F. Supp. 2d 346, 362-64 (S.D.N.Y. 2009); Thies v. New York City Bd. of Educ., 2008 WL 344728 (S.D.N.Y. 2008); M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181, at *5 (N.D.N.Y. 2008); Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 (S.D.N.Y. 2007); Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 (S.D.N.Y. 2005), aff'd, 192 Fed. App'x 62, 2006 WL 2335140 (2d Cir. 2006); Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-61 (S.D.N.Y. 2005); see also Voluntown, 226 F.3d at 69 n.9; Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 (N.D.N.Y. 2001)).

Thus, 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 their removal of the student from public school, or by written notice ten (10) 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. § 1412(a)(10)(C)(ii)(I); see: 34 CFR 300.148(d)(1)). Parents of students enrolled in private school are not exempted from the 10-day notice requirement. S.W. v New York City Dep't. of Educ., 646 F. Supp. 2d 346, 361-63 (S.D.N.Y. 2009). 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)). Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision (Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 (1st Cir. 2004); Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty

v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68).

The Court in R.G. v. New York City Board of Ed., 585 F. Supp.3d 524, 536 (S.D.N.Y. 2022), further explained: That list is non-exhaustive. Forest Grove, 129 S. Ct. at 2493; E.M. v. New York City Department of Education, 758 F.3d 442 (2d Cir.

2014) (characterizing the statutory factors as "elucidative rather than exhaustive" and stating that "[i]n [*536] making that equitable determination, the district court may consider many factors"). The court has "broad discretion to consider the range of all relevant facts in determining whether and to what extent awarding relief is equitable." J.S., 826 F. Supp.2d at 671 (citing Carter, 510 U.S. at 16, 114 S. Ct. 361). "Among the most important of these is 'whether the parents have cooperated with the District throughout the process to ensure their child received a FAPE.'" Id. (cleaned [**21] up) (quoting Bettinger v. New York City Board of Education, No. 06CV-6889, 2007 U.S. Dist. LEXIS 86116, 2007 WL 4208560, at *6 (S.D.N.Y. Nov.20, 2007). In considering the equities, "courts should generally presume that public-school officials are properly performing their obligations under IDEA." Forest Grove, 57 U.S. at 247, 129 S. Ct. at 2496. And to obtain reimbursement in whole or in part, parents bear the burden of establishing that equitable considerations favor them. R.E., 694 F.3d at 185. (Id.).

As aforementioned, the hearing record fails to contain any evidence of the Parents providing the requisite 10-day notice pursuant to 20 U.S.C. §1412(a)(10)(C)(iii) either in writing or at a most recent CSE meeting prior to their removal of the Student from public school^[6] (see: DOE Ex. “1” and “4”). The only reference to such notice in these proceedings is in the DPC which states, “On 11/2/21 the parents notified the DOE that the student had not received an appropriate IEP or IESP and had not receive a placement recommendation from the school district. The letter also notified the DOE that the parents intended to enroll the student in the [REDACTED] and would be seeking direct payment of tuition from DOE” (Parent Ex. “A” at p. 3) (emphasis added). However, this letter does not include this notification referenced in the DPC (DOE Ex. “4”). Nonetheless, it does notify the District of the Parents’ disagreement with the last program it had provided to the Student, e.g., SETSS, which the District responded to by scheduling the CSE meeting for January 4, 2022.

A hearing officer may excuse the failure to provide timely notice if, in his/her discretion, s/he determines that the reason for the lack of timely notice is that the parents are not literate or cannot write in English or compliance with the notice requirement would likely result in serious emotional harm to the student. See 20 U.S.C. § 1412(a)(10)(C)(iv); 34 C.F.R. § 300.148(e)(2). The hearing officer must excuse the failure to provide timely notice if, in his/her discretion, s/he determines that the reason for the lack of timely notice is that the school district prevented the parents from providing the notice, the parents had not received the procedural safeguards notice advising of the requirement to provide notice, or compliance with the notice requirement would likely result in physical harm to the student. See 20 U.S.C. § 1412(a)(10)(C)(iv); 34 C.F.R. § 300.148(e)(1). Notably, none of the reasons listed above, enabling a hearing officer to excuse the Parents’ failure to provide timely notice exist in this case.

Based on the foregoing, it appears that the District first became aware of the Parents’ disagreement with the special education program being provided to the Student pursuant to the IESP dated November 29, 2019, when the Parents sent the letter dated November 2, 2021. Accordingly, the award of tuition in this matter should initially be reduced by the first two (2) months of the 2021/2022 school year, (September and October), the time period that elapsed before the Parents sent this notice.

Moreover, pursuant to 8 NYCRR 200.4(e), “(e) IEP implementation. (1) . . . within 60 school days of the referral for review of the student with a disability, the board of education shall arrange for appropriate special programs and services. . .”. In the instant case however, approximately seventy (75) (instead of sixty, which would have been February 9, 2022) school days expired between when the Parents sent their aforementioned November 2nd letter providing consent to evaluate the Student and the District sent the School Location letter dated March 9, 2022, thus offering to implement the IEP. Accordingly, the District should not be found liable or responsible for the Student’s tuition at the School for at least the sixty (60) school day period it had to implement the IEP, or from November 2, 2021 through February 9, 2022. That leaves the period of February 9, 2022 through June 30, 2022 or approximately four and one-half months (4½) out of the ten-month 2021/2022 school year for which the District should be responsible for the Student’s tuition at the School, which totals $36,000.00 of the $80,000.00 tuition charged by the School for the 2021/2022 school year (Parent Ex. “B”).

Upon review of the Student’s schedule, it appears that some of her classes at the School are nonsecular and therefore, not eligible for tuition reimbursement or direct payment. However, neither party presented any evidence regarding this issue. In this regard this IHO notes that pursuant to this schedule, the Student attends “Halacha” three (3) times per week, forty-two (42) minutes per session, for a total of one hundred and twenty-six (126) minutes. According to the Encyclopedia Britannica, “Halakhah, (Hebrew: “the Way”) also spelled Halakha, Halakah, or Halachah, plural Halakhahs, Halakhot, Halakhoth, or Halachot, in Judaism, the totality of laws and ordinances that have evolved since biblical times to regulate religious observances and the daily life and conduct of the Jewish people.” https://www.google.com/search?q=halacha+hebrew&oq=halacha+hebrew&aqs=chrome..69i57j0 i512j0i22i30j0i390i650l2.3179j0j7&sourceid=chrome&ie=UTF-8 (last accessed 6/12/2023). The Student also attends “Chumash” two (2) times per week at forty-two (42) minutes per session for a total of eighty-four (84) minutes which is defined by Wikipedia as “Chumash (also Ḥumash; Hebrew: ‫חומש‬, pronounced [χuˈmaʃ] or pronounced [ħuˈmaʃ] or Yidd ish: pronounced [ˈχʊməʃ]; plural Ḥumashim) is a Torah in printed and book bound form (i.e. codex) as opposed to a Sefer Torah, which is a scroll. The word comes from the Hebrew word for five, ḥamesh (‫)חמש‬. A more formal term is Ḥamishah Ḥumshei Torah, "five fifths of Torah". It is also known by the Latinised Greek term Pentateuch in common printed editions. https://en.wikipedia.org/wiki/Chumash_(Judaism)#cite_note-chabadchumash-1, last accessed 6/12/2023). Finally, the Student attends “Mincha”, four (4) times per week, thirteen (13) minutes per session for a total of fifty-two (52) minutes, which is defined by Wikipedia as, “Mincha (Hebrew: ‫מִ נחַ ה‬, pronounced as IPA: [minˈχa]; sometimes spelled Minchah or Minḥa) is the afternoon prayer service in Judaism.” https://www.google.com/search?q=mincha&oq=mincha&aqs=chrome..69i57j0i512l3j0i20i263i5 12j46i512j0i512l2j46i512j0i512.4886j0j9&sourceid=chrome&ie=UTF-8 (last accessed 6/12/2023). Thus, it appears that the Student attends nonsecular classes a total of two hundred and sixty-two (262) minutes per week (126+84+52) out of the two thousand and four hundred (2,400) minutes per week (9 hours 4 days per week x 60 minutes = 2,160 + 240 ( 4 hours x 60 minutes) = 2,400). 262/2,400 = 10.916667%. 10.916667% of $36,000.00 = $3,930.00. $36,000.00 $3,930.00 = $32.070.00, the amount of tuition the District is obligated pay of the Student’s tuition at the School for the 2021/2022 school year.

Having met all three (3) of the Burlington/Carter Criteria, the Parents are entitled to reimbursement for THIRTY-TWO THOUSAND AND SEVENTY DOLLARS ($32,070.00) of the Student’s total tuition for the 2021/2022 school year, of which the Parents have paid FIVE THOUSAND DOLLARS ($5,000.00), leaving a balance of TWENTY-SEVEN THOUSAND AND SEVENTY DOLLARS ($27,070.00) (see: Parent Ex. “B” and “C”).

The remaining issue is whether this IHO can order direct payment to the School of the Student’s tuition for the 2022/2023 school year. As more fully explained below, the Parents have sustained this burden.

The Second Circuit Court of Appeals has held that a direct payment remedy is an appropriate form of relief in some circumstances, and that "[i]ndeed, where the equities call for it, direct payment fits comfortably within the Burlington–Carter framework" (E.M. v. New York City Dep't of Educ., 758 F.3d 442, 453 (2d Cir. 2014); see also Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 430 (S.D.N.Y. 2011) (finding it appropriate to order a school district to make retroactive tuition payment directly to a private school where equitable considerations favor an award of the costs of private school tuition but the parents, although legally obligated to make tuition payments, have not done so due to a lack of financial resources)).

The Parents’ Contract with the School provides in relevant part:

However, in the event that the Parent(s) does not qualify for prospective payment of tuition or Parent’s claim for tuition is denied by an impartial hearing officer, Parent(s) shall remain responsible for the full payment of tuition in accordance with the terms established below. (Parent Ex. “B”) (Emphasis added). Like in the E.M. case, the Parents are legally obligated to pay the School for the Student’s tuition for the 2021/2022 school year in the event that ultimately the School is not paid (Id.). Thus, the Parents incurred a financial obligation for the Student’s tuition, which supports an award of reimbursement relief. Moreover, the Parents have provided testimony and evidence demonstrating that they do not have the financial resources to pay for such services. In this regard, the Parent testified/explained why they are unable to pay the Student’s tuition at the School (see: infra). Accordingly, the Parents are entitled to an order direct payment to the School for the Student’s tuition for the 2021/2022 school year.

ORDER

IT IS HEREBY ORDERED that no later than thirty (30) days after this Decision, the DOE shall reimburse the Parents for their payment of a portion of the Student’s tuition at the School for the 2021/2022 school year totaling FIVE THOUSAND DOLLARS ($5,000.00); and IT IS FURTHER ORDERED that no later than thirty (30) days after the date of this decision, the District shall directly pay to the School TWENTY-SEVEN THOUSAND AND SEVENTY DOLLARS of the Student’s tuition for the 2021/2022 school year.

June 20, 2023

Randy Glasser

Randy Glasser, Esq.

Impartial Hearing Officer

NAMES AND TITLES OF APPEARANCES

FOR HEARING HELD ON MARCH 28, 2023

DOE

[REDACTED], District Representative School Psychologist

PARENTS

[REDACTED]

FOR HEARING HELD ON APRIL 20, 2023

DOE

[REDACTED], District Representative

PARENTS [REDACTED]

Parent Special Education Coordinator

DOCUMENTS ENTERED INTO THE RECORD

IHO EXHIBITS

I. DOE’s Closing Statement. 5/31/2023 11 pages IHO

II. Parents’ Closing Statement, 6/3/2023 6 pages IHO

III. Order of Extension, 4/4/2023 1 page IHO

DOE EXHIBITS

2. 1.IEP, 1/4/2022, 20 pages Psychoeducational Evaluation, 12/10/2021, 5 pages DOE

3. Level I Vocational Interview, 12/10/2021 2 pages DOE

4. Parent Letter, 11/2/2021, 1 page DOE

5. Prior Written Notice, 11/3/2021, 5 pages DOE

6. Term 1 Report Card, undated, 1 page DOE

7. Teachers’ Progress Report, undated, 5 pages DOE

8. Prior Written Notice Package for Placement & School Location Letter, 3/9/2022, 6 pages DOE

9. School Placement Request to CSE/D75, 2/18/2022, 2 pages DOE

PARENT EXHIBITS

A. Due Process Complaint, 7/21/2022, 4 pages

B. [REDACTED] Enrollment Contract, 11/1/2021, 6 pages

C. [REDACTED] Tuition Affidavit, 9/14/2022, 1 page

D. [REDACTED] Program Description, Undated, 3 pages

E. [REDACTED] 9th Grade Schedule, 2021/2022, 1 page

F. [REDACTED] Teacher Progress Report, 6/9/2022, 6 pages

G. Affidavit, 4/19/2023, 7 pages

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] Since there was no evidence submitted regarding the cost of related services, separate and apart from the Student’s tuition for the 2021/2022 school year at the School, this IHO shall only address whether or not the Parents are entitled to the requested direct payment of tuition.

[2] Notably, there was no evidence presented in this case that the Parents sent the requisite June 1st letter pursuant to 3602-c of the Education Law, requesting that the District develop an IESP for the 2021/2022 school year.

[3] The DPC states in relevant part, “Prior to the 2021-2022 school year, [the Student] was placed by her parents in a mainstream class in a private general education school and had SETSS services through an IESP dated 11/29/2019 which mandated 5 period per week of SETSS-Special Education Teacher Support Services…The student transitioned to high school in the fall of 2021 with no current evaluations and no up to date IEP or IESP…On 11/2/21 the parent notified the; DOE that the student had not received an appropriate IEP or IESP and had not received a placement recommendation from the school district” (Parent Ex. “A” at pp. 2 and 3, DOE Ex. “4”).

[4] Based upon this IHO’s finding, it is unnecessary to address the District’s remaining arguments, e.g., whether the IEP Team was duly constituted, the goals on the Student’s IEP are appropriate, etc. (IHO Ex. “”).

[5] Notably, both the Parent and Special Education Coordinator opined that even though the District offered an ICT class, like the ICT class in which the Student was enrolled at the School, the former was not appropriate because of the number of students in the class (34/35 in the District’s class versus 20/21 in the School’s ICT class). However, the Parents failed to present any expert testimony, evaluation, etc. substantiating this claim. Accordingly, this IHO’s decision regarding the appropriateness of the Student’s unilateral placement was not due in part to the fact that there were less students in the School’s ICT class (Tr. 142-143, 178).

[6] It appears from the Parent’s testimony that the Student never attended the District’s public schools. Moreover, upon review of the IEP from the meeting held on January 4, 2022, and the hearing record, there is no reference to the Parent’s disagreement with the recommended placement.