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FINDINGS OF FACT AND DECISION
Case Number: 230140
Student’s Name: [REDACTED]
Date of Birth: [REDACTED]
District: [REDACTED]
Hearing Requested by: [REDACTED]
Date of Hearing: March 31, 2023
April 20, 2020
May 16, 2023
May 25, 2023
Record Close: September 28, 2023
Hearing Officer: ANNETTE HICKS GILL, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
OCTOBER 4, 2022 *
For the Student:
[REDACTED], ESQ., Attorney
For the Department of Education:
NONE
NAMES AND TITLES OF PERSONS WHO APPEARED
NOVEMBER 8, 2022 *
For the Student:
[REDACTED], ESQ., Attorney
For the Department of Education:
NONE
NAMES AND TITLES OF PERSONS WHO APPEARED
MARCH 1, 2023 *
For the Student:
[REDACTED], ESQ., Attorney
For the Department of Education:
[REDACTED], ESQ., Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED
APRIL 20, 2023 *
For the Student:
[REDACTED], ESQ., Attorney
[REDACTED], Parent Student
For the Department of Education:
[REDACTED], ESQ., Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED
MAY 16, 2023 *
For the Student:
[REDACTED], ESQ., Attorney
For the Department of Education:
[REDACTED], ESQ., Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED
MAY 25, 2023 *
For the Student:
[REDACTED], ESQ., Attorney
[REDACTED], Parent Student
[REDACTED], PH.D., Neuropsychologist
[REDACTED], Director of Intermediate Division Gaynor 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 A [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 2021-2022 school year.
A substantive hearing began on March 31, 2023, and continued on April 20, 2023, May 16, 2023 and May 25, 2023. 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 24, 2022, included multiple claims that the DOE had failed to provide the Student an appropriate educational program and placement for the 2021-2022 school year, requesting reimbursement for unilateral placement at the Stephen Gaynor School (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), dated December 22, 2020. The Parent claims to have fully cooperated with the DOE. (P exhibit A3).
The District representative did not present any witnesses to establish a Prong I defense but did submit documentary evidence, without articulating a position during the hearing.
FINDINGS OF FACT
On December 22, 2020, the CPSE developed an IEP for the Student which indicated that the student should be placed in an ICT class with SETTS and pull-out related services in a general education environment. (D exhibit 1). The Parent fully participated in that IEP meeting and provided a neuropsychological evaluation. (P exhibit B). That evaluation revealed that [REDACTED] is a student with significant disabilities, attention deficits, dyslexia, processing disorder, and also has symptoms of anxiety. The Student has a high IQ, however, struggles with reading comprehension and decoding due to her dyslexia. She has a very unique special education profile that could not be met in the program that was proposed by the DOE.
With no appropriate IEP or placement, the Parent enrolled the Student at the [REDACTED], that could offer her the small special education classes that she needed. The Parent did voice her disagreement with the DOES placement and program, however the DOE never adjusted or responded to her requests. The testimony and evidence presented show that the [REDACTED]School was an appropriate setting for the Student. It provided her the multisensory instruction, a small classroom setting, with teachers trained and specialized in working with students with language-based learning disorders. Her progress reports demonstrate appropriate progress over the course of the school year. (P exhibits I & J).
The Parent argues that the Student is entitled to prospective funding and tuition reimbursement for the unilateral placement for the 2021-2022 school year.
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 establishing such. 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).
The District raised no issues concerning equities in this case. 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 County School. 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 did not meet the student’s needs as demonstrated by the testimony of the Director and the Parent and the neuropsychological evaluation.
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 2022-2022 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 cooperated with the District and gave timely notice of her intention to unilaterally place her child and seek reimbursement. 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] for the 2021-2022 school year.
IT IS SO ORDERED.
Dated: October 10, 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
1. IEP 12-22-20 27 pages DOE
2. Notice of IEP Meeting 12-04-20 4 pages DOE
3. PAD for Blending and Remote Learning 09-23-2020 4 pages DOE
4. Neuropsychological Eval 8-3-20 8-4-20 39 pages DOE
PARENT EXHIBITS
A. Impartial Hearing Request with Receipt 08/24/2022 3 pages
B. Neuropsychological Evaluation 08-27-2020 39 pages
C. Enrollment Contract 05/10/2021 7 pages
D. School Profile Undated 1 page
E. Attendance Record 07/05/2002 1 page
F. Class Schedule 09-21 to 6-22 1 page
G. Mid-Year S&L Remediation Report Undated 2 pages
H. End of Year S&L Remediation Report Undated 1 page
I. Mid-Year Report 01-29-2022 26 pages
J. End of Year Report 06-15-2022 26 pages
K. Tuition Affidavit 06-01-2022 1 page
L. Affidavit of Testimony Parent 10/31/2022 5 pages
M. Affidavit of Testimony, Director of School 05-18-2023 6 pages
N. Affidavit of Testimony, [REDACTED] 05-04-2023 4 pages
O. 2021 Parent Tax Return 08-01-2022 2 pages