New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 230079

Student’s Name: [REDACTED]

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested by: [REDACTED] (“Parent”)

Date of Hearing: December 2, 2022

Record Close: January 15, 2023

Hearing Officer: ANNETTE HICKS GILL, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED SEPTEMBER 22, 2022 *

For the Student:

NONE

For the Department of Education:

[REDACTED], ESQ., Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED OCTOBER 13, 2022 *

For the Student:

[REDACTED], ESQ., Attorney

For the Department of Education:

[REDACTED], ESQ., Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED DECEMBER 2, 2022 *

For the Student:

[REDACTED], ESQ., Attorney

[REDACTED], Parent

MICHELE LIPMAN, Director of School

For the Department of Education:

[REDACTED], ESQ., Attorney

* 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 an [REDACTED]-year-old student whose parents [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.

The hearing convened December 2, 2022. 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 (DPC) dated August 15, 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 reimbursement for unilateral placement at [REDACTED] (School) because of the DOE’s alleged failure to locate a program, public or private, that could implement the student’s Individualized Educational Program (IEP). It further requested reimbursement for other costs including Independent Evaluations (IEEs).

At hearing on December 2, 2022, the District offered no documentary or oral evidence and rested. The representative did however, orally maintain that the Parent did not meet their burden in proving that the program of [REDACTED] is an appropriate placement for the student. The District further argued that the Parent is not entitled to IEEs at public expense in this instance because they did not express a disagreement with the evaluation previously conducted by the District, nor was a request made that the IEE be reimbursed or completed at public expense. The Parent offered documentary evidence including affidavits and the Student’s mother, and [REDACTED], Director of School (Director) gave oral testimony in support of the claims outlined in the DPC.

FINDINGS OF FACT

On March 24, 2022, the CPSE developed an IEP for the Student which indicated that the student should be placed in a NYSED Approved Non-Public School-Day. (IHO exhibit 1). According to the DPC, when the Parent decided that the program was no longer appropriate for the student, a new IEP was requested that went unheeded by the District. The Parent then placed the child at the [REDACTED] school. (Parent exhibit A). The Director of [REDACTED] testified that she is personally familiar with the student sometimes teaching him on a substitute basis and through other interactions throughout the day. She identified various needs that the student has and claims that they have been provided for by the school. In addition, she testified that the other teachers are in touch with the Parent throughout the day. There are daily report cards that provide snapshots and Friday notes that the teachers write each week and parents may reach out to the teachers any point in the day. The Director also testified that the student receives other related services as recommended by the IEP. The teachers modify assignments and other tools to meet the needs of the student and give him a lot of positive reinforcement to keep him motivated. She further noted that he has made some improvement already.

The Parent gave a detailed assessment of the student’s current condition and needs during her testimony. She states that the child has a diagnosis of autism spectrum disorder and ADHD and discovered that he had special needs from his birth. The first placement by the District worked well for him at first, however she found that it was no longer appropriate in terms of emotional and academic instruction, also evidenced by an neuropsychological IEE. (Parent exhibit D). She then placed her child in [REDACTED] partially based on the neuropsychologist’s recommendation. She states that since attending [REDACTED], the child’s self-esteem has grown, he now understands his homework and has an overall new sense of achievement. He’s improved in math, reading, and other areas. The Parent testified that had the District responded to her request for a meeting and identified an appropriate program, she would have been opened to the District’s recommendation.

The Parent made multiple tuition payments (Parents exhibit J) and seeks reimbursement and payment for the rest of the school year. (Parents exhibit I).

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 [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 school Director.

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

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’s claim that the Parent failed to raise an issue with the District’s evaluation before seeking IEEs 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 testimony of the Director and the Parent and the IEEs.

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:

• • 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).
• • 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).
• • Whether the parents’ action was unreasonable. 20 U.S.C. §1412(a)(10)(C)(iii)(III), 34 C.F.R. § 300.148(d)(3).
• • Whether the cost of the private placement is unreasonable. Florence County Sch. Dist. Four v. Carter, 510 U.S. at 16.
• • 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

• • The DOE shall directly refund and prospectively fund the student’s tuition at the [REDACTED] school for the 2022-2023 school year.
• • The DOE shall also fund the cost of the IEEs conducted in this case.

IT IS SO ORDERED.

Dated: February 8, 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 Joint Ten-day Notice and Due Process complaint 08/24/2022 4 pages

B Neuropsychological Evaluation 12/23/2015 25 pages

C Year-end 2021-2022 Progress Report 06/10/2022 16 pages

D Neuropsychological Evaluation 07/25/2022 34 pages

E Billing Statement for 08/08/2002 2 pages

Neuropsychological Evaluation

F Letter of [REDACTED], PhD 08/18/2022 2 pages

G Referral Letter and Fax Receipt 07/18/2022 2 pages

H Program Description Undated 1 page

I Tuition Agreement 08/03/2022 4 pages

J Affidavit of Payment 10/11/2022 1 page

K Class Schedule Undated 1 page

L Daily Logs 10/31/2022 1 page

M Weekly Progress Reports – November 2022 Various 4 pages

IHO EXHIBITS

I IEP 03/24/2022 35 pages