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FINDINGS OF FACT AND DECISION
Case Number: 229584
Student’s Name [1]: [REDACTED] (“Student”)
Date of Birth: [REDACTED]
School District: [REDACTED]]
Hearing Requested by: [REDACTED] (“Parent” or “Mother)
Request Date/Date Complaint Filed: August 2, 2022
Date(s) of Hearing: August 31, 2022
October 13, 2022
October 19, 2022
Actual Record Closed Date: September 28, 2023
Date of Decision: October 5, 2023
Date of Distribution if Different than Decision Date: Hearing Officer: ANNETTE HICKS GILL
NAMES AND TITLES OF PERSONS WHO APPEARED
AUGUST 31, 2022
For the Student:
[REDACTED], Senior Advocate
For the Department of Education:
[REDACTED], ESQ., Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED
OCTOBER 13, 2022
For the Student:
[REDACTED], ESQ., Attorney
[REDACTED], Head of School
For the Department of Education:
[REDACTED], ESQ., Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED
OCTOBER 19, 2022
For the Student:
[REDACTED], ESQ., Attorney
For the Department of Education:
[REDACTED], ESQ., Attorney
INTRODUCTION AND PROCEDURAL HISTORY
This matter comes before the undersigned Impartial Hearing Officer (“IHO”), appointed on August 10, 2022, to address Parent’s Due Process Complaint (“DPC") filed on or about August 2, 2022. (P exhibit A) [2]. Said complaint alleged the IEP/IESPs were not based on legally sufficient records, and as a result, failed to create an IEP/IESP sufficient to meet the Student’s individual needs. It further states that CSE failed to outline detailed and sufficient goals, omitted needed services, and did not recommend a suitable placement.
On August 31, 2022, a pendency hearing was conducted at parent’s request. (transcript dated August 31, 2022). Prior to submission of an order, the parties entered into a pendency agreement on or about September 9, 2022. (IHO exhibit I). A substantive hearing commenced on October 13, 2022, and continued and concluded on October 19, 2022. On or about November 9, 2022, the Parent’s counsel submitted a closing brief. (IHO exhibit II). The appropriate applications for compliance extensions were made and granted.
The hearing convened on October 13, 2022, and continued October 19, 2022. On both dates, the Parent was represented by [REDACTED], ESQ., and the DOE was represented by [REDACTED]. Parent entered the following exhibits into evidence, P exhibit A- Due Process Complaint; P exhibit B-Ten Day Notice; P exhibit C- Student Enrollment Contract; P exhibit DAffidavit of Executive Director; P exhibit E-Student schedule; P exhibit F-Student Attendance; P exhibit G- Functional Behavior Assessment and Behavior Intervention Plan; P exhibit HProgress Report; P exhibit I-Affidavit of School Founder; and P exhibit J-Affidavit of Parent. DOE did not enter any documents into evidence [3]. The IHO has submitted IHO exhibit I, a pendency agreement dated September 9, 2022; and IHO exhibit II, the Parent’s closing brief dated November 9, 2022.
The record was closed on September 28, 2023.
JURISDICTION
The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.
BACKGROUND
The student is a [REDACTED] year-old boy diagnosed with autism spectrum disorder (ASD). (P exhibit A, J-1). The Parent gave the District notice of her intension to unilaterally place her child because of various concerns. The District did offer a placement for the child, however, the parent did not have an opportunity to tour the school because of unresponsiveness. Parent then unilaterally placed her child at the Titus School (School). (P exhibit J-3). The Parent seeks prospective funding of tuition and other services.
FINDINGS OF FACT
The Student is a [REDACTED] year old boy. diagnosed with autism spectrum disorder (“ASD”). (P exhibit A, J1). According to his mother, he struggles to stay on task, learn and retain new skills, appropriately interact with peers, and staff members, and attend to non-preferred activities. He has extremely delayed expressive language and becomes easily frustrated by his inability to express his feelings and needs to others. He engages in self-injurious behaviors as a manifestation of frustration and as a means of task avoidance, as well as socially inappropriate behaviors. He has deficits in fine and gross motor control and requires assistance with most selfcare skills. (Id.) The Student has received special education services for years, first through early intervention and then through the New York City DOE. (P exhibit J-2). The Parent gave notice to the DOE of her intension to unilaterally place her child because the CSE failed to complete necessary evaluations. She claims that it also failed to include sufficient 1:1 and/or small group support in light of the student’s needs. Next, it failed to recommend a specific methodology the Student requires given the nature of his disabilities. Also, it failed to address behavioral concern and communication needs. Finally, it failed to permit the Parent to tour the proposed program. (P exhibit B).
The Student began attending the [REDACTED] (School) in the 2021-2022 school year and has been there since then. (P exhibit A, J). The parent found the School when she began exploring private placements due to the DOE’s refusal to recommend an ABA based program. Id. After touring the program, she felt this was an appropriate placement for her child. (P exhibit J). She finds that at the School, he has more access to a collaborative and individualized approach between his service providers and his teacher. The team is aware of the Student’s medical conditions and has become a crucial contributor to gathering information and watching out for new complications with him. (Id). The parent participated in a CSE meeting on December 26, 2021.Ex, J-2. She voiced many concerns about the recommended program and the lack of ABA. The CSE informed the parent of their program recommendation and gave no other options. The DOE did not complete any evaluations or observations of the student prior to the meeting. He has not been evaluated by the CSE in over 3 years. The parent received a placement recommendation on January 17, 2022, for K396 at K323 however she was unable to get a date confirmed with the school just to tour it. She tried calling several times and never received a response from the school. (Id). The Parent submitted a Ten-Day Notice letter notifying the DOE of her disagreement with A.M.’s program and placement on October 2, 2022, the parent filed a request for an Impartial Hearing regarding the 2022-2023 school year. Ex. B.
CONCLUSIONS OF LAW
The decision in this case rests on a determination of the three-pronged test set forth by the United States Supreme Court in the Burlington case, which provided that a board of education may be required to pay for educational services obtained for a child by the child’s parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. School Committee of the Town of Burlington v. Dept. of Educ., Massachusetts, 471 U.S. 359 (1985); Florence County Sch. Dist. Four v. Carter, 510 US 7 (1993).
ISSUE 1 - Appropriateness of School District Program
An appropriate educational program begins with an IEP that includes a statement of the student’s present levels of academic achievement and functional performance. See 34 CFR §300.320(a)(1); 8 NYCRR §200.4(d)(2)(i); see also Tarlowe v. New York City Bd. Of Educ., 2008 WL 2736027 (SDNY July 3, 2008), noting that a CSE must consider, among other things, the “results of the initial evaluation or most recent evaluation” of the student, as well as the academic, developmental, and functional needs of the student. The IEP must accurately reflect the results of evaluations to identify the student's needs, establish annual goals related to those needs, and provides for the use of appropriate special education services. 34 CFR §300.320(a)(2); 34 CFR §300.320(a)(4); 8 NYCRR §200.4(d)(2)(iii); 8 NYCRR §200.4(d)(2)(v); see Application of the Board of Education, Appeal No. 14-104; Application of the New York City Department of Education, Appeal No. 13-121.
In this case, the district representative did not state that the DOE had provided the child with a FAPE for the 2022-2023, neither did she provide any documentary evidence or witness testimony. The District also did not note any issues concerning equity in this matter.
For the reasons noted, I find the district failed to provide a FAPE for the student. ISSUE 2 – Appropriateness of Parent Placement
Analysis turns to the second prong of Burlington, under which the parents bear the burden of proving the appropriateness of the services obtained for the student. M.S. v. Board of Education of the City of Yonkers, 231 F.3d 96, 104 (2d Cir. 2000); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 94-29; Application of a Child with a Disability, Appeal No. 95-57. In order to meet that burden, the parents must show that the Kids First offered an educational program designed to meet Student’s special education needs. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985). A unilateral placement is only appropriate if it provides education instruction specifically designed to meet the unique needs of a handicapped child. Gagliardo v. Arlington Central School District, 489 F.3d 105 (2d Cir. 2007).
In this regard, I find that the parents have sustained their burden of demonstrating the appropriateness of the program at the unilateral placement. It was established through testimony and other evidence that the school provides the types of services and instruction that the Student is in need of and it is found that he made significant progress at this placement by the Parent and the school Director. They have demonstrated that the School’s program has been tailored to meet the Student’s needs, including the completion of a functional behavioral assessment and behavior intervention plan. (P exhibit G).
For all the above, I find that the Parent has demonstrated the appropriateness of the program at the School. ISSUE 3 – Equities
The third prong of the Burlington decision requires a balancing of the equities in determining whether reimbursement should be awarded. The Individuals with Disabilities Education Act (IDEA) provides that an award of tuition reimbursement may be reduced or denied if notwithstanding their being advised that they should do so, parents neither inform the CSE of their disagreement with its proposed placement and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the school district with written notice of such information ten business days before such removal. 20 U.S.C. §1412(a)(10)(C)(iii). In this case, the Parent did inform the Factors relevant to equitable considerations include whether the withdrawal of the student from public school was justified. The statutory provision serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a FAPE can be provided in the public schools. Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 (1st Cir. 2004); see also Frank G., 459 F.3d 356 (2nd Cir. 2006).
In terms of equities, the District offered no evidence that would weigh against the Parent. REIMBURSEMENT.
A hearing officer is empowered to grant relief he, she or the court determines to be appropriate. 34 C.F.R. §300.516(c)(3). Once such remedy is reimbursement of tuition and related expenses. Florence Cunty Sch. Dist. Four v. Carter, 510 U.S. 7, IDELR 532 (1993); Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S.359, 103 LRP 37667(1985). A local education agency (LEA”) may be required to reimburse parents for their tuition payment to a private school for the services obtained for the student by his or her parents if the services offered by the LEA were inadequate or inappropriate, the services selected by the parents were appropriate under the Act, and equitable considerations support the parents’ claim for reimbursement. Id. In Burlington, the Court found that Congress intended retroactive reimbursement to parents by a Lea as an available remedy in a proper case. Burlington, 471 U.S.at 370-71. “Reimbursement merely requires [an LEA] to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper [IEP] Id. The mere fact that the private school placement does not bar the parents from reimbursement. Florence County Schl. Dist. Four v. Carter, 510 US. 7 (1993).
The initial inquiry is whether the student’s IEP and/or placement is/are “proper or “appropriate.” School Comm. Of Burlington, 471 U.S. at 369 and 374. However, this initial inquiry may go beyond the appropriateness of the IEP and/or placement, See, e.g., Forest Grove v. T.A., 57 U.S. 230 (2009) (child find); P.C. v. Oceanside Union Free Sch. Dist., 818 F. Supp. 2d 516 (E.E.N.Y. 2011) (eligibility) Mr. N.C. v. Bedford Cent. School. Dist., 300 F. App’s 11(2d Cir. 2008) inappropriate evaluation).
In this case, the Parent’s claims that the CSE failed to complete necessary evaluations, place the child at an appropriate placement and programing, address the students behavioral and communication needs have gone unchallenged by the DOE.
Should the hearing officer determine that the school district did not offer a FAPE to the student, the next inquiry is whether the parent’s unilateral placement is appropriate” or “proper”. School Comm. Of Burlington, 42 U.S. at 369 and 370; see also Carter 510 U.S. at 15.
I find that the Parent demonstrated through documentary and testimonial evidence that the unilateral placement was appropriate for the student for the 2022-2023 school year.
The final consideration is the balancing of the equites. In this step, the hearing officer must examine the action of the parents and school district, including:
1. Whether the parents failed to provide the school district with timely notice, either at the most recent IEP team meeting or at least 10 business days prior to removal of the student from the public school of their rejection of the proposed public placement, including their concerns and intent to enroll the student in a private school at public expense. 20 U.S.C. § 1412(a)(10)(C)(iii)(I); 34 C.F.R. §
300.148(d)(1).
2. Whether prior to the student’s removal, the school district informed the parents of its intent to evaluate the student, but the parent did not make the student available for the evaluation. 20 U.S.C. §1412(a)(10)(C)(iii)(II), 34 C.F.R. § 300.148(d)(2).
3. Whether the parents’ action was unreasonable. 20 U.S.C. §1412(a)(10)(C)(iii)(III), 34 C.F.R. § 300.148(d)(3).
4. Whether the cost of the private placement is unreasonable. Florence County Sch. Dist. Four v. Carter, 510 U.S. at 16.
5. Whether there was a lack of parental cooperation with the school district.
C.G. v. Five Town Community Sch. Dist., 513 F.3d 279 (1st Cir. 2008)
In this case, the Parent gave timely notice, and the District did not attempt to evaluate the Student. If find the Parent’s action and the cost to be reasonable. Lastly, the District failed to demonstrate lack of cooperation on the Parent’s part.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby ordered:
1. The DOE failed to provide a FAPE for the 2022/2023 school year; and
2. The DOE is to provide funding and or tuition reimbursement for the [REDACTED] School on a 12-month basis.
SO ORDERED.
DATED: October 5, 2023
Annette Hicks Gill
Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the parent and/or the Public-School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.
An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for 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.
APPENDIX A – REDACTION IDENTIFICATION PAGE
Student’s Name: [REDACTED]
Date of Birth: [REDACTED]
School District: [REDACTED]
Parent’s Name: [REDACTED]
APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD
PARENT EXHIBITS
A. Date Exh. ID Date Description Pages Admitted Due Process Complaint 2 11/6/22 8/2/22
B. Ten Day Notice 2 11/6/22 6/13/22
C. Student Enrollment Contract 18 11/6/22 4/1/22
D. Affidavit of Director 2 11/6/22 9/21/22
E. Student Schedule 5 11/6/22 22-23 SY
F. Student Attendance 1 11/6/22 Functional Behavior Assessment and G 1/5/22 Behavior Intervention Plan 17 11/6/22 22-23 SY
H. Progress Report 18 11/6/22 6/17/22
I. Affidavit of Director 5 11/6/22 10/6/22
J. Affidavit of Parent 5 12/7/22 10/6/22
DOE’S EXHIBITS
None
IHO’S EXHIBITS
I. Pendency Agreement 9/9/22 2 pages
PARENT
II. closing brief 11/9/22 14 pages
Footnotes
[1] Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.
[2] Exhibits shall be referred to as follows: “P” for Parents’ Exhibit; “D” for District’s or Department’s Exhibits; and “IHO” for Impartial Hearing Officer’s Exhibits. Exhibits will be followed by the exhibit number and page numbers as needed and appropriate.
[3] A more detailed list of the admitted exhibits is attached as Appendix B, “Documentation Entered Into the Record,” to this decision.