New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 230299

Student’s Name: “REDACTED”

Date of Birth: “REDACTED”

District: REDACTED

Hearing Requested by: “REDACTED”, Parent

Date of Hearing: January 12, 2023

Record Close: September 28, 2023

Hearing Officer: ANNETTE HICKS GILL, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

OCTOBER 12, 2022 *

For the Student:

“REDACTED” ESQ., Attorney for the Parent

REDACTED, Legal Intern

For the Department of Education:

“REDACTED”, ESQ., Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

NOVEMBER 17, 2022 *

For the Student:

“REDACTED”, ESQ., Attorney for the Parent

For the Department of Education:

“REDACTED”, ESQ., Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

DECEMBER 12, 2022 *

For the Student:

“REDACTED”, ESQ., Attorney for the Parent

For the Department of Education:

“REDACTED”, ESQ., Attorney

“REDACTED”, ESQ., District representative

NAMES AND TITLES OF PERSONS WHO APPEARED

JANUARY 9, 2023 *

For the Student:

“REDACTED”, ESQ., Attorney for the Parent

“REDACTED”, Consulting Teacher, REDACTED School

For the Department of Education:

“REDACTED”, ESQ., District Representative

* 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 parent “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 2021-2023 and 2022-2023 school years.

The hearing convened January 12, 2023, and then was closed on September 28, 2023.

DISTRICT AND PARENT POSITIONS

The Due Process Complaint (DPC) dated August 23, 2022, included multiple claims that the DOE had failed to provide the student an appropriate educational program and placement for the 2021-2022 and 2022-2023 school years, requested reimbursement for unilateral placement at REDACTED Academy (“REDACTED” or “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.

At a hearing on January 12, 2023, the District appeared and offered no objection to submission of exhibit documents by attorney for the student. The District did not present any witnesses and rested after submitting its documents.

In support of the DPC the Parent’s attorney offered documentary evidence including affidavits of the Student’s mother “REDACTED” and school representatives “REDACTED”, Consulting Teacher of “REDACTED”, “REDACTED” and “REDACTED”. “REDACTED” also gave oral testimony in support of the claims outlined in the DPC. Counsel for the parents further presents that in New York State, the School District has the burden of proving that the student was provided with a free appropriate public education. By presenting no witnesses or evidence, the DOE has essentially conceded that REDACTED was denied FAPE for the 2021/2022, and the 2022/2023 school year. The School District may be required to reimburse parents for their expenditures for private education services, if the services offered by the School District were inappropriate or inadequate, and the services selected by the parent were appropriate and equitable considerations support the parent's claim. A parent seeking tuition reimbursement, or a unilateral placement has the burden of proof regarding the appropriateness of such a placement. When determining whether a unilateral placement is appropriate, ultimately the issue turns on whether the placement is reasonably calculated to enable the child to receive educational benefit. And a private placement is appropriate if it provides instruction specifically designed to meet the unique needs of a student. Ms. REDACTED has met her burden concerning the appropriateness of REDACTED for her daughter REDACTED. The evidence provided describes the program, the upper school program, in depth, as well as the Transitions program for the 2023 school year. The witnesses' affidavits testify that the school serves -- it's a small school that serves individuals with a variety of disabilities. They create programs that are specifically meant to help a child become more independent both academically and in the community. Equitable consideration supports “REDACTED” claim for relief. She in no way frustrated any attempt of the Department of Education to provide REDACTED FAPE. Thus, the DOE should be ordered to fund tuition and transportation to the school. The District argues the Parent failed to show that the program and recommendations are reasonably calculated to provide meaningful educational benefits to to the student. The unilateral school placement must be reasonably calculated to enable the child to receive educational benefits, and must be likely to produce progress, not regression. Based on the evidence presented by the Parents, it's impossible to determine this beyond it simply being the parent's preference to enroll the student at that school. Therefore, the costs are not reimbursable under the (indiscernible) standards, and there is no showing that a private placement is appropriate to this student's needs.

FINDINGS OF FACT

“REDACTED” is an REDACTED year-old student with a disability classification of speech and language impairment. She has been enrolled at “REDACTED” since September of 2019. REDACTED requires extensive special education services to succeed in school. Her speech delays and understanding and responding to questions impede her ability to accept academic content. REDACTED requires extensive special education services to succeed in school. Testimony was provided indicating numerous procedural and substantive IEP violations denied REDACTED FAPE in the 2021/2022 and 2022/'23 school years. In May 2021, an IEP was developed which special education classes in a District 75 school. The child’s parent, “REDACTED”, swears that she never received a copy of the IEP. She did, however, receive a school location letter for the REDACTED School on REDACTED. After touring the school, “REDACTED” found that it would not be appropriate for REDACTED because the school program would not help her develop independence, and she would likely be placed in a classroom with peers who were less verbal than her. In August 2022, with no new IEP or school placement offered, “REDACTED” choose to keep “REDACTED” in “REDACTED”. Ms. “REDACTED”, from the REDACTED School, testified that the IEP meetings were not procedurally correct. There was no discussion of goals. The DOE had no updated evaluations regarding vocational assessment, and the DOE would not consider a more flexible program regarding community-based education. The evidence has descriptions of “REDACTED”'s Academy program, upper school program, and the Transitions program. And includes affidavits from “REDACTED”'s staff on how REDACTED has provided “REDACTED” with the necessary academic, behavioral, and social supports, to put her on a path towards independence.

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 provide 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, documentary evidence and witness testimony support the position that the child was not provided with a FAPE for the 2021/2022 and 2022-2023 school years and the DOE did not provide any evidence to the contrary. The District failed to present any testimonial evidence, nor did they submit any documentary evidence to prove that the IEP provided the student with a free and appropriate public education.

Additionally, the District failed to present any testimonial or documentary evidence to support that the recommended program could provide the Student with appropriate services or implement the IEP. The Department of Education also failed to present any documentary or testimonial evidence to prove that it considered adequate evaluative material.

Further, the District did not present 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. To meet that burden, the parents must show that the REDACTED 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 parent has sustained her 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 District of her disagreement with the proposed placement and her intention to place the child in a private school at the public school’s expense within the appropriate timeframe.

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 is no evidence offered to support a claim that the Parent failed to raise an issue with the District’s evaluation before seeking alternative education options. 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 “REDACTED” staff and the affidavit of the Parent.

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 2021-2022 and 2022-2023 school year.

The final consideration is the balancing of the equities. 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 failed to perform an appropriate evaluation of the Student. I 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

1. The New York City Department of Education failed to provide Student a Free and Appropriate Public Education to Student for the 2021/2022 and the 2022/2023 school years.

2. The DOE will pay the student’s tuition and transportation to and from REDACTED for the 2021/2022 and the 2022/2023 school years.

IT IS SO ORDERED.

Dated: October 6, 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

A. Due process complaint 8/23/22 5 pages

B. REDACTED Academy enrollment contract, 4/16/21 3 pages

C. Ten-day notice 8/30/21 3 pages

D. 2021/2022 REDACTED Academy program E unidentified date Semester Schedule 1 fall 2021 5 pages

F. unidentified date Semester spring 2022 schedule 1 G 5/11/22 REDACTED Academy enrollment contract 1 page

H. Ten-day notice 8/22/22 2 pages

J. I' unidentified date 22/'23 Transitions program description 1 unidentified date Fall 2022 schedule 3 pages

K. Affidavit from REDACTED 1/6/23 4 pages

L. Affidavit from REDACTED 1/11/23 6 pages

M. Affidavit from REDACTED 1/10/23 8 pages

N. Affidavit from REDACTED 1/11/23 3 pages