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Case Number: 577860 – NYC: 230072
Student’s Name: REDACTED (“STUDENT”)
Date of Birth: [REDACTED]
District: [REDACTED]
Hearing Requested by: REDACTED (“Parent”)
Date of Hearing: September 22, 2022
October 6, 2022
November 17, 2022
Record Close: March 15, 2023
Hearing Officer: ANNETTE HICKS GILL, Esq.
FINDINGS OF FACT AND DECISION
NAMES AND TITLES OF PERSONS WHO APPEARED
SEPTEMBER 22, 2022 *
For the Student:
REDACTED, ESQ., Attorney
For the Department of Education:
NONE
NAMES AND TITLES OF PERSONS WHO APPEARED
OCTOBER 6, 2022 *
For the Student:
REDACTED, ESQ., Attorney
For the Department of Education:
NONE
NAMES AND TITLES OF PERSONS WHO APPEARED
NOVEMBER 17, 2022 *
For the Student:
REDACTED, ESQ., Attorney
For the Department of Education:
NONE
* All appearance were by video conference.
This case was brought before me 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 and [REDACTED]-year-old student whose parents REDACTED (“PARENT”) brought the instant hearing, arguing that the DOE had failed to provide their child with a free appropriate public education (FAPE) for the 2022-2023 school year.
The hearing convened for a pendency hearing on October 6, 2022, and a pendency decision was issued on November 17, 2022. Parent’s exhibits A-C (see attached) were submitted by the parent for that pendency hearing and the district made no submissions and did not appear. The substantive hearing was held on November 17, 2022. In addition to Parent’s A-C that were resubmitted, Parent’s exhibits D-V were submitted at that time. (See attached). The District made no submissions and did not appear. The Parent submitted Extensions were granted in accordance with regulations and the record closed upon receipt of the remaining evidence.
DISTRICT AND PARENT POSITIONS
The due process complaint notice (DPCN) dated August 24, 2022 included multiple claims that the DOE had failed to provide the student an appropriate educational program and placement for the 2022-2023 school year, requesting placement of the student in the 2022-2023 at the REDACTED School, REDACTED. The Parent also requested related services of Occupational Therapy, Physical Therapy, Speech Language Therapy and a health professional, full time 1:1. (Parent exhibit A).
As noted, a pendency hearing was conducted October 6, 2022, and an order of pendency issued November 17, 2022, ordering the DOE to fund or provide reimbursement for the student’s attendance at Franciska and related services, pending decision in the current case.
At hearing on November 17, 2022, the parent attorney confirmed that there was no significant change in the new claim, stating that there been no new IEP and the parent was just asking for the same relief for the 2022-2023 school year. As noted above, there was no submission made by the district nor was an appearance made.
FINDINGS OF FACT
The Parent brings this action on behalf of daughter REDACTED, who has been diagnosed with Down Syndrome. The Parent state that she was initially enrolled at the Franciska school following an experience with public school placements that were inappropriate and proved unable to provide her with a FAPE. The first offer of placement by the DOE was later withdrawn by them because in part, it was unreasonably far from home. (Parent exhibit K). The second offered placement did not offer classes for the student’s grade level. (Parent L).
Through the affidavit of REDACTED, the director of the REDACTED school, Parent maintains that the REDACTED school provides educational instruction specially designed to meet the student’s unique needs, and she is well supported by services provided through transmittals and related service authorizations to permit her to benefit from the instruction and make meaningful educational progress. Parent states that the REDACTED school is a small, nonsectarian school in which students are grouped based on their functional levels in small classrooms for socialization, but the student and other students all learn individually. In the classroom, REDACTED described the variety of curricular and techniques that are used including the functional academic curriculum that integrates functional skills into instruction in all the academic areas. Reading Mastery, Language for Leaning are among the direct instruction programs used to support student progress. (Parent exhibit U).
The Parent further established through the affidavit of REDACTED that at the REDACTED School, the relevant and prerequisite techniques and programs are applied, and data is gathered ensuring that the student is making progress according to her abilities.
The Student receives her related services at the school which provides the therapy space and equipment to ensure that she can benefit from therapy during the school day without impacting her academic program or extending her school day. (Ibid).
Notification was given to the District of the Parent’s intention to unilaterally place the child at the REDACTED school but received no response. (Parent exhibit M)
Lastly, the family offered a contract demonstrating their obligation to pay tuition at REDACTED (Parent exhibit N), and offered tax information to support the claim that it would be a hardship for them to pay upfront and so await reimbursement. (Parent exhibits T and V). The Parent states further that they were cooperative at all times and willing to use the services of the public system, but that no appropriate program was made available to them. (Parent exhibit V).
According to the Parent, the current IEP for the 2022-2023 school year includes significant increases in the child’s services that the Parent and DOE agreed to. However, the District did not instate the services because of the unilateral placement. (Parent exhibit A).
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, by the DOE’s failure to appear and failure to offer evidence to prove that it had provided the child with a FAPE in the 2022-2023 school year, 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 [REDACTED]. 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 [REDACTED] offered an educational program designed to meet [REDACTED]’s special education needs. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 98-76; Application of a Child with a Disability, Appeal No. 94-29. 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 Franciska. I credit the description of both the school director and the parent of Franciska as a school for students with autism, and the various strategies, modalities, and curricula she described, as well as the emphasis on the sensory and communicative aspects of the school. Progress was noted in his verbal communication, social engagement, as well as improvement in overall executive functioning.
For all the above, I find that the parents have demonstrating the appropriateness of the program at REDACTED for their child. 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).
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, there was no objection form the district based on equities, nor any evidence to suggest an issue. Under the circumstances, analysis of equities would not prevent an award for the Student at REDACTED. Direct payment.
The parent has also requested direct funding to the school. In Connors vs. Mills, 34 F.Supp.2d 795 (NDNY, 1998), the Court stated that once the Burlington/Carter prerequisites are met, the issue is not the fact of payment, but the timing of that payment, and stated that when “…a parent shows that his or her financial circumstances eliminate the opportunity for unilateral placement in the non-approved school, the public school must pay the cost of private placement immediately.” An impartial hearing officer can order prospective tuition funding, where in circumstances to hold otherwise would be to deny a child the right to access to services under the IDEA. Sabatini v. Corning-Painted Post Area School District, 78 F.Supp. 2d 138 (USDC, WDNY).
In this case, I credit the Parent’s undisputed testimony concerning income and inability to afford the tuition. Under the circumstances, direct funding in this case is warranted.
ORDER
1. The DOE shall directly fund the Student’s tuition at the REDACTED School for the 2022-2023 school year, upon submission of proof of attendance.
2. Payment under Paragraph 1 of this Order shall be reduced by any payment paid under the Pendency Order issued in this case.
3. The DOE shall fund the following related services by Related Servcie Authorization or transmittals to fund the related services, transportation and other supports as provided on the current IEP as follows:
a. Occupational Therapy, five individual 30-minute sessions per week;
b. Physical Therapy, three individual 30-minute sessions per week;
c. Physical Therapy, one group 30-minute sessions per week;
d. Speech Language Therapy, three individual 30-minute sessions per week;
e. Speech Language Therapy, two group 30-minute sessions per week; and
f. A health paraprofessional, full time 1:1.
IT IS SO ORDERED.
Dated: March 20, 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. EXHIBIT DESCRIPTION DATE # of pages Impartial Hearing Request 8/24/22 7 pages
B. Amended Findings of Fact and Decision #212027 5/24/22 16 pages
C. Individualized Educational Program 3/12/21 26 pages
D. Individualized Educational Program 2/16/22 41 pages
E. Speech Language Therapy Progress Report Undated 4 pages
F. Occupational Therapy Report Undated 3 pages
G. Physical Therapy Report 2/9/22 3 pages
H. Teacher Progress Report 2/10/22 3 pages
I. Prior Written Notice 6/3/22 4 pages
J. School Location Letter 6/3/22 2 pages
K. Correspondence to CSE 7/25-27/22 5 pages
L. School Location Letter 8/1/22 5 pages
M. Letter to CSE 8/9/22 3 pages
N. Enrollment Contract 9/2/22 5 pages
O. Description of Program Undated 3 pages
P. Class Schedule and Profile 22-23 SY 3 pages
Q. Student Goals and Objectives 22-23 SY 5 pages
R. Affidavit of Payment and Proof of Payment 10/14/22 2 pages
S. Attendance 10/14/22 1 page
T. Tax Return 2021 2 pages
U. Affidavit– School Director 11/8/22 13 pages
V. Affidavit– Parent 11/3/22 3 pages
IHO
NONE