New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 230094

Student’s Name: [REDACTED] (“Student”)

Date of Birth: [REDACTED]

School District: [REDACTED]

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

Request Date/Date Complaint Filed: August 15, 2022

Date(s) of Hearing: September 22, 2022

October 4, 2022

October 13, 2022

November 8, 2022

December 6, 2022

Actual Record Closed Date: January 26, 2022

Date of Decision: February 6, 2023

Hearing Officer: ANNETTE HICKS GILL, ESQ.

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

For the Student:

NONE

For the Department of Education:

NONE

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 4, 2022

For the Student:

[REDACTED], ESQ., Attorney

For the Department of Education:

NONE

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

For the Student:

[REDACTED], ESQ., Attorney

For the Department of Education:

[REDACTED], ESQ., Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 8, 2022

For the Student:

[REDACTED], ESQ., Attorney

For the Department of Education:

NONE

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 18, 2022

For the Student:

[REDACTED], ESQ., Attorney

For the Department of Education:

NONE

NAMES AND TITLES OF PERSONS WHO APPEARED ON December 6, 2022

For the Student:

[REDACTED], ESQ., Attorney

[REDACTED], Grandparent

[REDACTED], Director of Achievement Unlocked

For the Department of Education:

[REDACTED], ESQ., Attorney

INTRODUCTION AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) regarding Parent’s Due Process Complaint (“DPC") filed on or about August 15, 2022. (Parent exhibit A).

The DPC is a joint two-year claim for the 2021-2022, and 2022-2023 school years. It alleges that only a 2021-2022 IEP was prepared for the Student, dated November 3, 2021, which excluded the Guardian’s input, ignored all the available documentation, and carried out a predetermined plan to offer the Student a seat at an inappropriate ICT class. Further, it claims that the Student has received neither an IEP nor placement for the 2022-2023 school year. As such, the Parent maintains that there has been both a procedural and substantive denial of FAPE for both school years.

The DOE raised an objection to the claim regarding the 2021-2022 school year, arguing that the relevant IEP for the 2021-2022 school year was created March 18, 2021, and not the November 3, 2021 IEP, which was created after the start of the school year. As such, the DOE suggests that the Parent failed to state a proper claim, or present relevant and sufficient legal support.

I was appointed to this matter on August 26, 2022. A substantive hearing commenced and concluded on December 6, 2022, at which time the Parent was represented by [REDACTED], ESQ., of [REDACTED], LLP; and the District was represented by [REDACTED], ESQ. A pre-hearing conference was scheduled for September 22, 2022, however no one appeared. It was preceded by status conferences on October 4, 2022, October 13, 2022, November 8, 2022, and November 18, 2022. Appropriate extensions were requested and granted in keeping with statutory requirements.

Parent entered exhibits A-R (See attached) into evidence. DOE proposed 14 exhibits which were marked for identification, but because no witness was present to lay a foundation, only the IEPs and Prior Written Notices, DOE’s exhibits 2, 3, 10 and 11 were admitted.

The record was closed on January 26, 2023.

JURISDICTION

The due process proceeding 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 an [REDACTED]-year-old boy who has an IEP classification of, Autism. (Parent exhibit B). The recommendation was made that he receive SETSS for math and ELA, counseling, and occupational therapy and be removed from his previous placement and relocate to a public school with a special ed teacher. (DOE exhibit 2). The Parent made various allegations that the IEP is inappropriate as a whole and in each component part, namely that it is outdated, deficient and inconsistent. (Parent exhibit B).

ISSUES

The following are the issues presented in this case:

• • Whether the DOE placement was found to be inappropriate? The Parent refers to the November 3, 2021 IEP in the DPC and states that there was a procedural and substantive denial of FAPE for both the 2021-2022 and 2022-2023 school years. The District claims that the March 18, 2021 IEP is the relevant report because the November IEP was created after the 2021-2022 school year commenced. As such, the District objects to the request for relief for the 2021-2022 on that basis and further suggests that the section of the DPC that includes the request for relief is vague and did not allow the DOE to prepare its case. The DOE raised no objection to the denial of FAPE claim regarding the 2022-2023 school year.
• • Whether the Parent establishes the appropriateness of the unilateral placement? The Parent argues that the [REDACTED] school is an appropriate placement, and that the Student made meaningful progress. The District maintains that the placement does not adequately address the students behavioral needs an is not sufficiently calculated to meet the student’s academic needs.
• • Whether the equities in this case favor the Parent or the District? The Parent argues that in the absence of FAPE, equities should never favor the DOE, regarding the 2021-2022 school year. Further, the Parent urges that enough evidence was put forth to justify a favorable outcome in equity regarding the 2022-2023 school year. The District did not contest any claims for equity.
• • Whether the Parent’s request for an order directing the District to pay the student’s tuition be granted? The Parent believes that prospective funding of the student’s tuition for both school years is in order, while the District only contests the granting of that funding for the 2021-2022 school year.

FINDINGS OF FACT

The Director of the School stated through oral testimony and testimonial affidavit that the School serves students who have challenges at other education placements. The student to staff ratio is 2:1 or 1:1 with very small classes. The curriculum is developed from common core standards that are modified based upon each student’s individual needs. There are behavioral supports, and the teachers are qualified to meet the needs of the students. She noted that the Student that is the subject of this claim learns best with small group instruction and specific supports, programs and equipment, all provided at the School. There are also specific strategies used by the teachers to help the Student regulate which have yielded positive results. The student needs the level of support provided by the school and is progressing. (Parent exhibit P and Ms. [REDACTED]’s December 6, 2022 testimony, transcript pp 42-55).

The Student’s Grandmother and Guardian testified that she noticed that her grandson had special needs since he was a baby, presenting delays in speech and walking, and noted concerns with eye contact. The Student attended a charter school named [REDACTED] Prep beginning the second grade. In September of 2021, he started classes again at the charter school until in December 2021. The Guardian attended an IEP meeting for the Student on November 3, 2021, at which time he was changed from a learning disability classification to autism. It was found that the charter school did not have the proper setting and he was placed at two different public schools. The first was P.S. [REDACTED], and the Guardian complained to the District because it was inappropriate; the District did not disagree. The Student was then placed at P.S. [REDACTED]. (Guardian’s December 6, 2022 testimony, transcript pp 55-77). The District found that a public school setting at [REDACTED] was appropriate for him with a regular class, a special ed teacher, and other services. (DOE exhibit 2). At the IEP meeting, the Guardian insisted that the student would function better in a smaller group however, her objection went unheeded. After visiting [REDACTED] and speaking with someone there and sharing the IEP, she was told that they did not have an autism classroom and that she should go back to the District. (Guardian’s December 6, 2022 testimony, transcript pp 55-77).

The Guardian claims that from December to March, the Student was very frustrated and unhappy. He was also being sent home between two and four times per week because of his behavioral issues and declining academically. The student was angry and aggressive, and the school was concerned that he could harm others. (Ibid). When she complained to the school and asked whether the student could be placed somewhere else, the Guardian stated that she was told that her grandson just needed time to adjust and that there was no other school that they could recommend. Per the Guardian’s request, her attorneys served a 10-Day Notice and DPC on the District on August 15, 2022, (Parent exhibit D) expressing her intension to unilaterally place her grandson at [REDACTED]. She placed the student at [REDACTED] because she was concerned that the Student was going to stay behind academically. The Guardian found that [REDACTED] provides a small environment that upholds the standards of the DOE while possessing the tools for supporting the Student’s behavioral challenges. During testimony it was revealed that the Guardian receives daily reports to keep her abreast of the student’s progress. She noted that the Student is a happier child and made progress over the Spring of 2022, and the beginning of the 2022-2023 school year. She stated that her grandson is excited about attending [REDACTED] and shares what he is learning in his various subjects when he is home. Also, he is no longer being sent home from school. During Direct examination, the Guardian’s attorney asked whether she would have considered a District recommendation of another school that was more appropriate than the prior placement, she expressed her willingness to consider (Guardian’s December 6, 2022, testimony, transcript pp 55-77).

The Guarding entered into a Tuition Contract (Parent exhibit L) and testified that she does not have the ability to pay the tuition up front. (Guardian’s December 6, 2022, testimony, transcript pp 55-77).

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).

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).

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:

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.

ANALYSIS

In this case, the district representative did not prove that the DOE had provided the child with a FAPE for the 2021-2022 and 2022-2023 school years. The District also did not note any issues concerning equity in this matter but merely stated that the Parent referred to the November 2021 IEP rather than the March 2021 IEP. That argument is weak, especially considering the fact that it seemingly rejects the most recent IEP conducted by the District. The November IEP is the most relevant in this case because it prompted the removal of the Student from the charter school, to the public school. For the reasons noted, I find the district failed to provide a FAPE for the student, both years.

The parents have met 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. It was also found that he made significant progress at this placement by the testimony of the Guardian and the school Director.

In this case, the Parent did provide timely notice (Parent D), and adequate justification for the unilateral placement. I also find the Parent’s action and the cost of tuition 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:

The DOE shall directly refund and prospectively fund the student’s tuition at the [REDACTED] [REDACTED] school for the 2021-2022 and 2022-2023 school years.

SO ORDERED.

DATED: February 6, 2023

Annette Hicks Gill

ANNETTE HICKS GILL, ESQ.

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], GUARDIAN and or PARENT

Director’s Name: [REDACTED], Director

Unilateral Placement: [REDACTED, [REDACTED]

SUBMIT THIS PAGE TO THE PARENT AND SCHOOL DISTRICT ONLY. DO NOT SUBMIT TO THE NYSED.

APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

Exhibit

Document

Date

Pages

A.

B.

C.

D.

E.

F.

G.

H.

I.

J.

K.

L.

M.

N.

O.

P.

Q.

R.

Joint TDN (2021-2022) and DPC (2021-2022, 2022-2023)

Psychological Diagnostic Evaluation

Evaluation Follow-up

2021-2022 TDN

2021-2022 Program Description

2021-2022 Tuition Contract

2021-2022 Affidavit of Payment

2021-2022 Class Schedule

2021-2022 Attendance Records

Spring 2022 Progress Report

2022-2023 Program Description

2022-2023 Tuition Contract

2022-2023 Affidavit of Payment

2022-2023 Class Schedule

2022-2023 Attendance Records

Testimonial Affidavit of [REDACTED]

Sample Daily Report Cards

Sample Weekly Progress Reports

8/15/22

4/6/2021

6/4021

1/27/22

Undated

3/4/2022

11/10/2022

Undated

Undated

Undated

Undated

7/12/02022

10/14/2022

Undated

Undated

11/1/2022

Various

Various

4

10

4

2

2

5

1

1

1

12

1

4

1

2

2

3

7

5

DOE’S EXHIBITS

Exhibit

Document

Date

Pages

IEP marked DOE exhibit 2 for identification

Prior Written Notice marked DOE exhibit 3 for identification

IEP marked DOE exhibit 10 for identification

Prior Written Notice marked DOE exhibit 11 for identification

11/3/2021

11/23/2021

3/18/2021

4/28/2021

28

11

24

9

IHO’S EXHIBITS

Exhibit

Document

Date

Pages

NONE

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Enter date of exhibit. Press tab key.

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