New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 229880

Student’s Name: “REDACTED”.

Date of Birth: “REDACTED”.

District: REDACTED

Hearing Requested by: “REDACTED”., Parent

Date of Hearing: January 6, 2023

Record Close: September 28, 2023

Hearing Officer: ANNETTE HICKS GILL, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

SEPTEMBER 16, 2022 *

For the Student:

“REDACTED”., ESQ.

For the Department of Education:

NONE

NAMES AND TITLES OF PERSONS WHO APPEARED

OCTOBER 5, 2022 *

For the Student:

“REDACTED”., ESQ.

“REDACTED”., Law School Intern

For the Department of Education:

NONE

NAMES AND TITLES OF PERSONS WHO APPEARED

NOVEMBER 22, 2022 *

For the Student:

“REDACTED”., ESQ.

“REDACTED”., Law School Intern

For the Department of Education:

“REDACTED”., District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

DECEMBER 14, 2022 *

For the Student:

“REDACTED”., ESQ.

For the Department of Education:

NONE

NAMES AND TITLES OF PERSONS WHO APPEARED

JANUARY 6, 2023 *

For the Student:

“REDACTED”., ESQ.

For the Department of Education:

NONE

* All appearances were by video conference.

This case was brought before the undersigned Impartial Hearing Officer pursuant to appointment by the New York City Department of Education (DOE) under the Individual with Disabilities Education Act (IDEA), 20 United States Code §1415(f)(1).

“REDACTED” (Student) is a REDACTED year-old student and his mother “REDACTED”. (Parent) brought the instant action, arguing that the DOE had failed to provide their child with a free appropriate public education (FAPE) for the 2022-2023 school year.

DISTRICT AND PARENT POSITIONS

The Due Process Complaint (DPC) dated August 17, 2022, included multiple claims that the New York City Department of Education’s (DOE) failure to provide a Free and Appropriate Public Education (FAPE) for the 2022-2023 school year. “REDACTED”. believes that the DOE has failed to provide “REDACTED”. with FAPE as required by New York State Education law, the Individuals with Disabilities Education Act (IDEA) and Section 504 of the Rehabilitation Act of 1973, by failing to provide an IEP meeting and IEP, and failing to provide a school placement. After determining that the DOE’s IEP and placement for the 2021-2022 school year were inappropriate because the April 2021 IEP did not include academic or intelligence testing, “REDACTED”. gave the DOE notice that she was keeping “REDACTED” at “REDACTED”. II for the 2021-2022 school year. A Due Process Complaint was filed based pm the denial of FAPE. After a hearing, during which the DOE presented no witnesses or evidence, the Department of Education was ordered to fund tuition at “REDACTED”. II and provide transportation for the 2021-2022 school year. The DOE did not provide “REDACTED”. with a new IEP for the 2022-2023 school year. “REDACTED”. never received a school location letter and gave notice to the DOE on June 30, 2022 that she would be keeping “REDACTED” at the “REDACTED”. School and seeking tuition for the 2022-2023 school year. “REDACTED”. is an appropriate placement for “REDACTED”. for the 2022-2023 school year. Eden II has been able to accommodate “REDACTED”.’s significant needs. “REDACTED”. is a small school which serves students with Autism through evidence-based principles such as ABA. Students are provided with instruction to promote the development of communication, academic, social, self-help, and vocational A3 skills. Goals are uniquely tailored to meet the educational and behavioral needs of each student for them to reach their full potential. “REDACTED”. has made consistent progress at “REDACTED”. and can continue to succeed in his current placement.

The evidence shows that the DOE did not provide “REDACTED”. with a new IEP or placement for the current school year, and thus failed to provide him a free, appropriate public education. By submitting no evidence or presenting any witnesses, the DOE has essentially conceded a FAPE.

A parent seeking tuition reimbursement for unilateral placement has the burden of proof regarding the appropriateness of such a placement. When determining whether a unilateral placement is appropriate, ultimately, the issue turns on whether the placement's reasonably calculated to enable this child to receive educational benefits. And a private placement is appropriate if it provides instruction specifically designed to meet the unique needs of the student. “REDACTED”. has met her burden. “REDACTED”., the clinical director of “REDACTED”., testified through affidavit, Exhibit J, that “REDACTED”. is providing instructions specifically designed to meet his unique needs. Since his enrollment, “REDACTED”. explained that “REDACTED”. has been able to accommodate “REDACTED”. needs, and that he has continued to make progress while attending the school. The goals are uniquely tailored to meet his needs, and that he has made consistent progress at the school. The other documents in the record, the psychological update and the classroom observation are also submitted in support of the parent’s position. “REDACTED”. is seeking pendency, tuition for the 2022-2023 school year at “REDACTED”., and a new IEP.

At hearing on January 6, 2023, the District did not appear and therefore offered no documentary or oral evidence in opposition to the parent’s request. The Parent offered documentary evidence including affidavits of the Student’s mother and “REDACTED”., Clinical Coordinator of “REDACTED”. Program gave oral testimony in support of the claims outlined in the DPC.

FINDINGS OF FACT

“REDACTED” is a REDACTED year-old student attending the “REDACTED”. School with a disability classification of Autism. “REDACTED”. was diagnosed with autism spectrum disorder in November 2019. He was evaluated due to his mother’s concerns regarding his delayed development. “REDACTED”. had limited speech and engaged in echolalia. He demonstrated self\-A1 stimulatory behaviors such as flapping his hands and would hit himself when upset. He failed to make eye contact or consistently respond to his name. After his diagnosis, “REDACTED”. had “REDACTED”. evaluated for special education services. During the evaluation, he exhibited significant self-directed behaviors which inhibited his ability to participate fully even when given extensive assistance. REDACTED also walked on his toes, frequently fell, and demonstrated difficulty with motor planning and coordination. After the evaluations, the New York City Department of Education Committee on Pre-school Special Education, created an IEP for “REDACTED” on February 3, 2020. Noting profound delays in cognition, social emotional, speech and language, fine motor, and gross motor skills, “REDACTED” was placed at “REDACTED”. During the initial school tour, staff at REDACTED expressed to “REDACTED” that they felt “REDACTED” was not a good fit for the school because of his significant behaviors. However, with no other options available, “REDACTED” was enrolled at “REDACTED”. Within a few weeks, “REDACTED” determined that the school was not the right placement for “REDACTED”. They requested a new IEP meeting to reconsider another placement. After the IEP meeting, “REDACTED” was transferred to “REDACTED” Preschool, an “REDACTED” Program. Evidence is submitted to support that REDACTED is an appropriate placement for “REDACTED” for the 2022-2023 school year. “REDACTED” has been able to accommodate “REDACTED”s significant needs. “REDACTED” is a small school which serves students with Autism through evidence-based principles such as ABA. Students are provided with instruction to promote the development of communication, academic, social, self-help, and vocational A3 skills. Goals are uniquely tailored to meet the educational and behavioral needs of each student for them to reach their full potential. “REDACTED” has made consistent progress at “REDACTED” and can continue to succeed in his current placement.

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 has not provided evidence that the child was provided with a FAPE for the 2022-2023, neither did the DOE 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 Parent has sustained their burden of demonstrating the appropriateness of the program at “REDACTED”. It was established through testimony and other evidence that the school provides the types of services and instruction that the Student is in need of and it is found that he made significant progress at this placement by the Parent and the “REDACTED” Clinical Coordinator.

For all the above, I find that the Parent has demonstrated the appropriateness of the program at REDACTED for the Student. ISSUE 3 – Equities

The third prong of the Burlington decision requires a balancing of the equities in determining whether reimbursement should be awarded. The Individuals with Disabilities Education Act (IDEA) provides that an award of tuition reimbursement may be reduced or denied if notwithstanding their being advised that they should do so, parents neither inform the CSE of their disagreement with its proposed placement and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the school district with written notice of such information ten business days before such removal. 20 U.S.C. §1412(a)(10)(C)(iii).

In this case, the Parent did inform the school of her intentions to enroll her son in another school that will better address his needs.

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, any claim that the Parent failed to raise an issue with the District’s evaluation before seeking alternative educational options is unfounded as no evidence was offered to support that claim. Under the circumstances, analysis of equities would not prevent an award for the student’s tuition at “REDACTED” REIMBURSEMENT.

A hearing officer is empowered to grant relief he, she or the court determines to be appropriate. 34 C.F.R. §300.516(c)(3). Once such remedy is reimbursement of tuition and related expenses. Florence Cunty Sch. Dist. Four v. Carter, 510 U.S. 7, IDELR 532 (1993); Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S.359, 103 LRP 37667(1985). A local education agency (LEA”) may be required to reimburse parents for their tuition payment to a private school for the services obtained for the student by his or her parents if the services offered by the LEA were inadequate or inappropriate, the services selected by the parents were appropriate under the Act, and equitable considerations support the parents’ claim for reimbursement. Id. In Burlington, the Court found that Congress intended retroactive reimbursement to parents by a Lea as an available remedy in a proper case. Burlington, 471 U.S.at 370-71. “Reimbursement merely requires [an LEA] to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper [IEP] Id. The mere fact that the private school placement does not bar the parents from reimbursement. Florence County Schl. Dist. Four v. Carter, 510 US. 7 (1993).

The initial inquiry is whether the student’s IEP and/or placement is/are “proper or “appropriate.” School Comm. Of Burlington, 471 U.S. at 369 and 374. However, this initial inquiry may go beyond the appropriateness of the IEP and/or placement, See, e.g., Forest Grove v. T.A., 57 U.S. 230 (2009) (child find); P.C. v. Oceanside Union Free Sch. Dist., 818 F. Supp. 2d 516 (E.E.N.Y. 2011) (eligibility) Mr. N.C. v. Bedford Cent. School. Dist., 300 F. App’s 11(2d Cir. 2008) inappropriate evaluation).

In this case, it was established that the placement was no longer able to meet the student’s needs as demonstrated by the Affidavits of the Eden II representative and the Parent.

Should the hearing officer determine that the school district did not offer a FAPE to the student, the next inquiry is whether the parent’s unilateral placement is appropriate” or “proper”. School Comm. Of Burlington, 42 U.S. at 369 and 370; see also Carter 510 U.S. at 15.

I find that the Parent demonstrated through documentary and testimonial evidence that the unilateral placement was appropriate for the student for the 2022-2023 school year.

The final consideration is the balancing of the equities. In this step, the hearing officer must examine the action of the parents and school district, including:

1. Whether the parents failed to provide the school district with timely notice, either at the most recent IEP team meeting oar 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 properly and fully evaluate the Student. I find the Parent’s action and the cost to be reasonable. Lastly, the District failed to demonstrate lack of cooperation on the Parent’s part.

ORDER

1) The DOE shall pay and reimburse for tuition for the 2022-2023 school year;

2) The DOE shall pay and reimburse for door-to-door roundtrip transportation; and

3) The DOE shall create a new IEP for the 2022-2023 school year noting a nonpublic school placement.

IT IS SO ORDERED.

Dated: October 5, 2023

Annette HIcks Gill

ANNETTE HICKS GILL

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An Appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for proceedings before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

EXHIBITS

DEPARTMENT OF EDUCATION EXHIBITS

None

PARENT EXHIBITS

A. Due process complaint and pendency forms 8/17/22 6 pages

B. CPSE individualized education program 4/9/21 20 pages

C. Findings of fact and decision 7/1/22 17 pages

D. Uncontested pendency form 10/7/21 2 pages

E. Description of program and cost affidavit 9/14/22 2 pages

F. Psychological update 9 3/3/21 3 pages

G. Classroom observation 2/24/21 1 page

H. Unidentified document 7/1/21 18 pages

I. Ten-day notice 6/30/22 1 page

J. Affidavit of “REDACTED” 11/22/22 21 pages