New York City Department of Education, Impartial Hearing Decision

Case Number: 577798 - 230020

FINDINGS OF FACT AND DECISION

Case Number: 230020

Student’s Name: REDACTED

Date of Birth: REDACTED

District: REDACTED

Region: REDACTED

Hearing Requested By: Parents

Dates of Hearing: August 30, 2022

October 19, 2022

November 21, 2022

January 4, 2023

February 2, 2023

March 20, 2023

Actual Record Close Date: April 20, 2023

Hearing Officer: Maria R. Dispenza, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

August 30, 2022

For the Student:

REDACTED Parent Attorney

For the Department of Education:

REDACTED DOE Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

October 19, 2022

For the Student:

REDACTED Parent Attorney

For the Department of Education:

REDACTED DOE Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

November 21, 2022

For the Student:

REDACTED Parent Attorney

For the Department of Education:

REDACTED DOE Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

January 4, 2023

For the Student:

REDACTED Parent Attorney

For the Department of Education:

REDACTED DOE Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

February 2, 2023

For the Student:

REDACTED Parent Attorney

For the Department of Education:

REDACTED DOE Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

March 20, 2023

For the Student:

REDACTED Parent Attorney

REDACTED Parent/Mother

REDACTED Director of Education, @ REDACTED

For the Department of Education:

REDACTED DOE Attorney

INTRODUCTION

On August 24, 2022, New York City Department of Education (DOE) appointed me to act as the impartial hearing officer (IHO) in a case brought under the Federal Individuals with Disabilities Education Act (IDEA) [20 USC §1415(f)(3)] (“IDEA”) by the parent (Parent) of REDACTED (REDACTED) for the school year 2022/23. The Parent requested the hearing by filing an impartial hearing request with DOE on or about August 23, 2022. The DPC is carried under New York City (“NYC”) Case No: 230020. The impartial hearing was held over a series of dates, to complete the record on March 20, 2023. The timelines have also been extended to allow the parties opportunity to fully prepare, secure witnesses and obtain transcripts. The record officially closed on April 20, 2023. A list of persons who appeared at the hearing and the documents entered into evidence is annexed hereto.

BACKGROUND AND POSITION OF BOTH PARTIES

REDACTED is a student classified by the Department of Education (DOE) with “Autism” (Exhibit G). Parent alleges due to a stroke and subsequent seizures during infancy, REDACTED suffers from left side weakness and other developmental deficits, and further has longstanding severe deficits in social-pragmatic language, processing speed, comprehension, social-emotional skills, sensory integration, fine and gross motor skills, focus and attention, presents with poor impulse control and demonstrates some aggressive behaviors when dysregulated (Exhibit A). Historically, REDACTED has been recommended for a nonpublic school (NPS) placement for many years and attended various NPS placements, none which were able to meet his overall needs (Exhibit A). He has attended REDACTED (REDACTED) since January 2020 (Exhibits A, S and T). On or about June 20, 2022 Parent provided a ten-day notice to the DOE placing them on notice of concerns and intent to re-enroll REDACTED at REDACTED if an appropriate program was not developed and an appropriate placement offered before the start of the 2022/23 12-month school year. Parent filed a DPC on or about August 23, 2022, as the CSE had neither yet convened to develop an IEP for REDACTED for the 2022/23 school year nor offered a placement (Exhibits A, C and D). On October 25, 2022 the CSE convened, created an IEP and recommended a District 75 8:1:1 12-month program with related services (Exhibit G).

Parent alleged for the 2022/23 school year, the DOE failed both procedurally and substantively to offer REDACTED a free and appropriate public education (FAPE) and enumerate an extensive series of allegations in the DPC (Exhibit A). Via the DPC, parent seeks: (1). an order that the DOE conduct updated evaluations in all suspected areas of disability and comprehensively evaluate REDACTED’s strengths and deficits. Such evaluations should include an independent neuropsychological evaluation, as well as updated behavioral observations and testing, and related service evaluations; (2). an order that the DOE reconvene to consider the aforementioned test results within thirty days of receipt, and recommend an appropriate program, related services and behavioral support throughout the day for REDACTED; (3). an order directing the DOE to make direct payment and/or reimburse for REDACTED’s placement at REDACTED for the twelve month 2022/23 school year; (4). an order to provide REDACTED with appropriate transportation to and from REDACTED for the entire twelve month 2022/23 school year and/or have the DOE issue reimbursement for all transportation expenses incurred by the Parent during the twelve month 2022/23 school year due to the DOE’s failure to provide appropriate transportation (Exhibit A).

At the hearing, the DOE while not formally conceding to failing to provide REDACTED with a FAPE for the 2022/23 school year, merely rested without the submission of any documentary evidence or presentation of any witness testimony (T @ 37-38) stating:

“the Department is not putting on a Prong I or defending FAPE in this matter, but the Department is holding the Parent to their Prong II burden regarding the appropriateness of the placement of the student, REDACTED, at REDACTED…..Additionally, it is the Department's position that the enrollment contract …… for this school year obligates the Parent only to pay $4,700 for the 2022/23 school year” (T @ 37-38).

The DOE opted to cross-examine Parent witnesses.(T @ 43-54).

In an effort to support their position, the parents presented two (2) witnesses via affidavits and available for cross-examination: REDACTED – Director of Education at REDACTED, and REDACTED, REDACTED’s mother, along with twenty (20) pieces of documentary evidence (Exhibits A–T).

FINDINGS OF FACT AND DECISION

The Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) was enacted with the primary purpose to ensure that students with disabilities have available to them a free and appropriate public education (FAPE) (20 U.S.C. § 1400[d][1][A]; see Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]; Bd. of Educ. v. Rowley, 458 S. Ct. 176, 179-81, 200-01 [1982]; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [2d Cir. 2006]). It is clear that the legislative intent of 20 US Code Section 1412 of the IDEA is to provide a FAPE to all children with disabilities so that these individuals may ultimately lead productive independent lives as adults, to the maximum extent possible (20 U.S.C. Sx 1400[d][1][A]; see Mrs. W v. Tirozzi, 832 F.2d 748 [2nd Cir. 1987]. A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.17; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.22). An IEP is designed as a "written statement" that addresses the educational needs of a child with a disability (20 U.S.C. § 1401[14]; 34 C.F.R. § 300.22; 8 NYCRR 200.1[y]). At the beginning of each school year, a school district is required to have an IEP in effect "for each child with a disability in its jurisdiction" (20 U.S.C. § 1414[d][2]; 34 C.F.R. § 300.323[a]; see also Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 194 [2d Cir. 2005] (finding the district fulfilled its legal obligations by providing the IEP before the first day of school). The student's recommended program must also be provided in the least restrictive environment (LRE) (34 C.F.R. § 300.114[a]; 8 NYCRR 200.6[A][1]). A FAPE is offered to a student when the board of education (a) complied with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. at 176, 206, 207 [1982]). The IDEA directs that, in general, a decision by an impartial hearing officer or state review officer must be made on substantive grounds based on a determination of whether or not the child received a FAPE (20 U.S.C. § 1415[f][3][E][i]). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child'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 child, or (c) caused a deprivation of educational benefits to the child (20 U.S.C. § 1415[f][3][E][ii]; see 8 NYCRR 2005[j][4][ii]). The IDEA mandates that a student with a disability be provided with a FAPE tailored to meet his unique needs and one that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas Cty. Sch. Dist., 580 U.S. ___, 137 S.Ct.988, 999 (2017). A focus on the particular child is at the core of the IDEA. Endrew F., 137 S.Ct. at 999. Under 20 U.S.C. Section 1414(d)(3)(A), the IDEA mandates an IEP team to consider a child’s strengths, weaknesses and deficiencies, as well as the results of the most recent evaluations of the child together with developmental and functional needs of the child. In order to determine the student’s requirements and needs, the team must review and consider evaluations, assessment and information provided by the child’s parents, teachers and service providers and thereon determine the type of program required for the child. A board of education may be required to pay for educational services obtained for a child by the child's parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim. (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; see also Frank R. and Dianne R. v. Bd. of Educ. of Hyde Park,459 F.3d 356 [2d Cir. 2006], cert denied, Board of Educ. of Hyde Park Cent. School Dist. v. Frank R.,2007 WL 2982269 [Oct. 15, 2007]. The case at hand is a tuition reimbursement case and is therefore governed by the holding of the U.S. Supreme Court in Burlington School Comm. v. Dept of Education (471 U.S. 359 [1985]). That case set forth a three-prong test for determining if tuition reimbursement is warranted:

(1) were the services offered by the school district inadequate or inappropriate;

(2) where the services selected by the parents appropriate; and

(3) do equitable considerations support the parents’ claim. Recently enacted state legislation puts the burden of proof for the first prong on the school district and for the second prong on the parent (Chap. 583 of Laws of 2007).

Prong I:

An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the child’s needs, establishes annual goals and short-term instructional objectives which are related to the child’s educational deficits, and provides for the use of appropriate special education services to address the child’s special education needs. Application of a Child with a Disability, Appeal No 93-12; Application of a Child with a Disability, Appeal No 93-9; Application of a Child with a Handicapping Condition, Appeal No 92-7; Matter of Handicapped Child, 22 Ed Dept Rep 487, March 11, 1983. The SRO has found that allegations that are left unchallenged are deemed as true “unless found to be inconsistent with the evidence in the record.” Application of a Student with a Disability, 01-044 (SRO March 27, 2002). The DOE’s silence at hearing has the effect of conceding every point alleged by the parent against the DOE unless it is inconsistent with the hearing record. Id.

In the case at hand, the DOE did not provide any witnesses or documentary evidence to rationalize its recommended program for REDACTED and represented it would not be presenting a Prong I case or defending a failure to provide a FAPE. Upon due consideration, I find the DOE failed to meet its affirmative burden of showing that it provided a FAPE to the Student for the 2022/23 school year by providing an appropriate IEP and placement for REDACTED, resulting in a denial of FAPE.

The Parents have met the first of the three Burlington/Carter criteria for tuition reimbursement.

Prong II:

Having determined that the DOE did not offer the student a FAPE for the 2022/23 school year, I now proceed to evaluating the appropriateness of the parents’ unilateral placement of the student at REDACTED. The parent’s failure to select a program approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Florence County Sch Dist Four v. Carter 510 U.S. 7 [1993]). The private placement need not employ certified special education teachers, Carter, supra. The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of the unilateral placement: “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”. (Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).

In the case at hand, the DOE again did not provide any witnesses to rationalize its recommended program and placement for REDACTED but did raise allegations of the appropriateness of the parental placement. However, the DOE cross-examination of the parent witnesses did not raise material challenge to Parent’s contentions as to the appropriateness of the unilateral placement. Contrarily, the evidence and testimony presented by the Parent supports that REDACTED was an appropriate placement for REDACTED during the 2022/23 school year.

Herein, I credit the testimony (Exhibits S and T, T @ 43-53) and evidence (Exhibits O and P) submitted and find it establishes that the placement at REDACTED was appropriate as it provided a program and services that were directly related to REDACTED’s needs and one in which he was able to make meaningful progress. I find the evidence to substantiate the program at REDACTED to offer a small supportive environment with intensive 1:1 and small group instruction, modifications and supports required by REDACTED to make progress.

REDACTED is described as a private, therapeutic day and boarding school for students on the autism spectrum disorder (ASD) who face complex challenges and who need significant adult supervision. The mission of REDACTED is to improve the lives of children, adolescents and young adults on the autism spectrum (Exhibit T). REDACTED offers a varied curriculum, grounded in evidence-based principles for teaching students with ASD with options designed to meet each student’s individual goals (Exhibit N and T). REDACTED offers related services on a push in to the classroom rather than pull out option (Exhibit T). The teacher to student ratio is 2:1 and classes are capped at eight (8) students.

REDACTED testified that the hallmark of the REDACTED program is their unique transdisciplinary approach to determine appropriate goals for each student by an assigned team comprised of teachers, clinicians and campus life staff who work in concert with the student and family. REDACTED developed an Individualized Transdisciplinary Education Plan for REDACTED (Exhibit O). REDACTED provided extensive testimony as to the individual program REDACTED developed for and that benefitted REDACTED (Exhibit T and T @ 45-49). She attested:

“I believe that REDACTED is an appropriate placement for REDACTED for the 2022/23 school year. Our team of educators, therapists and related service providers work so closely together that we are able to be on the same page about how to support REDACTED in all domains, and our data indicates that he is making steady and meaningful progress with the support that we have provided” (Exhibit T).

REDACTED, REDACTED’s mother, attested:

“He is making steady progress in all subjects and becoming more and more independent. I am in contact with his teachers and related service providers regularly—at least once per week, and they have told me that he is progressing with the goals they developed for him in March of 2022” (Exhibit S).

Based upon the foregoing, I therefore find that REDACTED was an appropriate placement for REDACTED for the 2022/23 school year. The record reflects REDACTED provided a rich supportive environment that correlated well with REDACTED, that the curriculum was specifically tailored to meet REDACTED’s needs and that he received a highly individualized instruction that enabled him to make appropriate progress. Based upon the foregoing, I find that the student made meaningful progress at REDACTED for the 2022/23 school year across the board: academically, socially and emotionally. The record reflects that REDACTED was a placement that was “specifically designed to meet the unique needs” of the student Frank G, supra and that REDACTED has made progress therein.

Prong III:

Having found REDACTED an appropriate placement, I now consider equitable considerations, the final criterion for a reimbursement award. In weighing the equities, “the critical consideration, as the Court sees it, is whether they have cooperated in good faith to attempt to develop an IEP to the maximum extent possible, Schaffer, supra. There is nothing in the record to show that the Parents were anything other than cooperative. The DOE did not present any evidence or testimony to address equity considerations for the 2022/23 school year. All indications are that the Parents cooperated with the DOE and did not interfere in any way with the DOE’s obligation to provide a FAPE for the Student for the 2022/23 school year. REDACTED’s Parent put the DOE on timely notice of their concern and of REDACTED’s unilateral placement and their intent to seek reimbursement (Exhibits C). At hearing, the DOE raised concerns and issue with the parental responsibility limited under the school contract. Specifically, the DOE raised that the enrollment contract explicitly incorporates a payment schedule that only obligates the Parent to pay $4,700 in tuition for the 2022/23 school year and that the contract creates an expectation that the DOE will supply the rest. As such, the DOE argued the relief, if any to the Parent, ought to be limited to said amount as the DOE should not be obligated to pay more than the Parent (T @ 54-55). However, Parent provided credible testimony as bearing full contractual responsibility on the full tuition outstanding for the 2022/23 school year, testifying:

“I had signed the enrollment contract for the twelve month, 2022/23 school year on June 22, 2022, because I knew that REDACTED was a good fit for REDACTED. He had been receiving the individualized attention he needed, and was thriving both socially and academically. It is my understanding that the tuition contract is in evidence as Exhibit H. My tuition obligation for the twelve month, 2022/23 school year is $144,356.00…….Pursuant to my payment plan, which is offered as Exhibit I, I have been making monthly payments of $350….. As of the drafting of this affidavit, I have paid a total of $2,300, and I plan to continue making monthly payments. It is my understanding that a tuition affidavit is offered into evidence as exhibit L……Through this hearing, I am seeking an order of direct tuition funding of the remaining tuition balance, as well as reimbursement of all payments I have made for the 2022/23 school year” (Exhibit S).

During cross-examination, she testified:

“……the payment schedule, but the contract is saying and what I understand is that that is in addition to me owing the $144,356. They made a schedule because they want to make sure that I'm, you know, I guess paying some of the agreed-upon scheduled payments. But I'm responsible for the $144,356. That's what it's saying” (T @ 52).

Upon review herein, the enrollment contract (Exhibit H) unambiguously reflects a clear and ultimate obligation of the parent to that contractual obligation. There is nothing in the record that refutes parent’s contractual obligation.

This case involves a situation where the Parent’s financial circumstances limit her ability to make payment to REDACTED (Exhibit S). Established case law warrants a finding that under such circumstances a school district must pay the monies owed, assuming parent’s claim is meritorious with regard to the three Burlington factors. In Conners v. Mills, 34 F. Supp. 2d 795 (N.D.N.Y.) at 805, the court reasoned:

“By prohibiting prospective placement, Defendants would deny assistance to families that are not able to front the cost of a private, non-approved school, without exception…Given the fragile state of many disabled children, and their dire need for constant and consistent care, even brief periods of inappropriate schooling could lead to tremendous educational, social, emotional and psychological deterioration. Families of greater economic means would not be faced with such a grim prospect. It simply cannot be the case that an act designed to grant “all” disabled children access to needed services could undermine that very goal by making such access dependent upon a family’s financial situation.”

Upon due consideration, I find (1). the DOE failed to offer the student a FAPE for the 2022/23 school year; (2). the unilateral placement of the student at REDACTED to be appropriate and reasonably calculated to provide REDACTED with meaningful educational benefits; and (3). that equitable considerations weighed in favor of the Parents’ request for reimbursement for all costs associated with the placement of the student at REDACTED.

ORDER

Therefore, it is hereby ordered that

1. Within thirty (30) days of receipt of this Order, the DOE shall directly fund and reimburse the tuition and all fees for the student’s placement at REDACTED for the 2022/23 school year in the amount of $144,356.00. All payments are to be documented by appropriate invoices and other proofs of billing and payment.

2. The DOE has an obligation to provide appropriate transportation to REDACTED to and from the unilateral placement.

Dated: April 25, 2023

Maria R. Dispenza

MARIA R. DISPENZA, ESQ.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

PLEASE TAKE NOTICE

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.

DOCUMENTATION ENTERED INTO THE RECORD ON MARCH 20, 2023

A. Parent: Impartial Hearing Request and Pendency Form, 08/23/22 – 14pp B. Findings of Fact and Decision (IHO Case #194440), 10/16/20 – 16pp

C. Ten Day Notice, 06/20/22 – 11pp

D. Determination Letter, 07/07/22 - 2pp

E. School Location Letter, 10/27/22 – 7pp

F. Parent Email Regarding School Tour, 11/04/22 -1pp

G. Individual Education Program, 10/25/22 -33pp

H. REDACTED Enrollment Contract, 06/22/22 -6pp

I. REDACTED Enrollment Contract Addendum, 01/04/23 – 1pp

J. REDACTED Attendance, 2022-23 -4pp

K. REDACTED Summer Attendance, Summer 2022 – 2pp

L. REDACTED Tuition Affidavit, 03/01/23 – 1pp M. REDACTED Schedules, 2022-23 – 1pp

N. REDACTED Program Description, 2022-23 -1pp

O. REDACTED Individualized Transdisciplinary Education Plan, 2022-23 -28pp P. REDACTED Clinical Achievement, Functional Performance and Goals, 2022-23 -23pp Q. Parent Tax Return, 2021 -2pp

R. Parent Proof of Payment, Various, 2pp

S. Parent Affidavit: REDACTED, Undated -10pp

T. School Administrator Affidavit: REDACTED, 03/13/23 -14pp