Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 234230

Students Name: [REDACTED]

Date of Birth: [REDACTED]

Date of Hearing: 01/19/23

04/18/23

06/12/23

08/04/23

09/14/23

09/28/23

District: [REDACTED]

CSE: [REDACTED]

Hearing Requested by: Parent

Hearing Officer: Tina Millman

Record Close Cate: 11/13/23

NAMES AND TITLES OF PERSONS WHO APPEARED 01/19/23

For the Department of Education:

None DOE Representative

For the Parents:

[REDACTED] Parent Attorney

NAMES OF PERSONS WHO APPEARED 04/18/23

FOR THE DOE

[REDACTED] DOE Attorney

FOR THE PARENT

[REDACTED] Parent Attorney [REDACTED] Parent

NAMES OF PERSONS WHO APPEARED 06/12/23

FOR THE DOE

[REDACTED] DOE Attorney

FOR THE PARENT

[REDACTED] Parent Attorney

NAMES OF PERSONS WHO APPEARED 08/04/23

FOR THE DOE

None DOE Attorney

FOR THE PARENT

[REDACTED] Parent Attorney [REDACTED] Parent

NAMES OF PERSONS WHO APPEARED 09/14/23

FOR THE DOE

[REDACTED] DOE Attorney

FOR THE PARENT

[REDACTED] Parent Attorney [REDACTED] Clinical Coordinator, [REDACTED]

NAMES OF PERSONS WHO APPEARED 09/28/23

FOR THE DOE

[REDACTED] DOE Attorney

FOR THE PARENT

[REDACTED] Parent Attorney

The matter of [REDACTED] (hereinafter " the student “or [REDACTED]) came before me for determination on January 19, 2023, April 18, 2023, June 12, 2023, August 04, 2023, September 14, 2023, and September 28, 2023 in accordance with the provisions of Section 1415 of the Individuals with Disabilities in Education Act (IDEA), part 200.5 of the New York State Special Education Regulations, Section 504 of the Rehabilitation Act, and the Americans with Disabilities Act. (“ADA”) for the failure of the New York City Department of Education to provide a Free Appropriate Public Education to “the student” for the 2022-2023 school year.

PROCEDURAL HISTORY

The proceeding was initiated at the request of the parent by correspondence dated September 07, 2022. (Ex A) I was appointed as the Impartial Hearing Officer on October 25, 2022.

The compliance date was extended as a result of requests by both parties in light of the possibility of settlement and witness availability. Appended to the record are lists of persons in attendance and of documents submitted into evidence. Any issues not raised at the hearing have been deemed waived.

The DOE CASE

The DOE offers no evidence nor are witnesses called to support that a FAPE was offered to the student for the 2022-2023 school year. During the hearing on April 18, 2023, the DOE concedes Prong I and rests without producing any evidence nor witnesses to support. The DOE waives making an opening statement. During the hearing on 9/14/23, the DOE stated on the record they are not contesting the appropriateness of the parents’ unilateral placement and concedes Prong II. (Tr. 184) The DOE representative contests the equities –Prong III in that there is no enrollment contract in the record, [REDACTED] is a non-public school however the DOE attorney notes that if the Parent could show what the cost of [REDACTED] is, they would be satisfied. (Tr. 186-187)

THE PARENTS CASE

The Parent offers 7 documents into evidence (A-G). The Parent calls [REDACTED] the Clinical Coordinator at [REDACTED] Program to testify as to the appropriateness of the program and that the Parent is not charged for the students 12 month placement. The Parent asserts that this is not a 3 prong Burlington/Carter case in that “Case law is clear that a student is only considered to have been unilaterally placed when his or her parents change the student's placement "during the pendency of review proceedings, without the consent of state or local school officials" (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 373-74 (1985); see 34 CFR 300.148(c)). Here, the evidence presented establishes that due to the DOE’s failure to hold an IEP meeting, provide an IEP, or provide a public-school placement recommendation for [REDACTED] 2022-2023 school year, that the parent identified [REDACTED] as the school [REDACTED] would attend during the 2022-2023 school year, which New York State Approved Nonpublic School [REDACTED] had been attending since preschool. (Ex. H-1-2). Additionally, the evidence presented demonstrates that students can only attend [REDACTED] through the Central Based Support Team or through pendency, neither of which affords parents the opportunity to “unilaterally” place their child by signing an enrollment contract, and that [REDACTED] was specifically entitled to attend [REDACTED] during the 2022-2023 school year through pendency during the pendency of this litigation. (Tr. 174-176). Therefore, the evidence presented establishes that the parent did not change [REDACTED] placement during the 2022-2023 school year without the consent of state or local school officials, and therefore that this is not a unilateral placement case.”

I do not concur as to the Parents assertion and will utilize the Burlington 3 prong analysis in this matter.

In the alternative if I find this is a Burlington 3 prong case the Parent’s assert that the DOE failed to provide a FAPE for the 2022- 2023 school year, [REDACTED] was appropriate to meet the students’ special education needs and the equities favor the Parent. They maintain that in light of the DOE failing to support they provided a FAPE, coupled with the appropriateness of the parents’ unilateral placement and the equities favoring the Parent that the DOE should be obligated to fund the students’ placement at Eden in the amount of $60,631 for the cost of the 10-Month Tuition Program and $10, 105 for the cost of the 6 week summer tuition program in a total amount not to exceed $70,736. (IHO Ex II )

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Two purposes of the IDEA (20 U.S.C. sect. 1400-1482) are (1) to ensure that with disabilities have available to them a free appropriate public education (FAPE) that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected. (20 U.S.C. sect. 1400 (d) (1) (A)-(B); see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 (2009); Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 (1982).

A FAPE is offered to a student when (a) the Board of Education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits ( Rowley, 458 U.S. at 206-207; Cerra v. Pawling Cent. Sch. Dist., 427 F. 3d 186, 192 (2d Cir 2005) ). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally in adequate under the IDEA. ( A.C. v. Bd. of Educ., 553 F. 3d 165, 172 (2d Cir. 2009); Grim v. Rhinebeck Cent. Sch. Dist., 346 F 3d 377, 381 ( 2d Cir. 2003); Perricelli v. Carmel Cent. Sch. Dist. 2007 WL 465211, at 10 (S.D.N.Y. Feb 9, 2007) ).

Under the IDEA, if a procedural violation is alleged, and administrative officer may find that the student to not receive a FAPE only if the procedural inadequacies (a) impeded the students’ rights to a FAPE, (b) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. sect. 1415 (f)(3)(E)(ii); 34 CFR 300.513 (a) (2); 8 NYCRR 200.5 (j)(4)(ii); Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-526 (2007); A.H. v. Dep't.. of Educ., 2010 WL 3930028, at *2 (2d. Cir. Aug. 16, 2010; E.H. v. Bd. of Educ., 2008 WL 3930028 at *7 (N.D.N.Y. Aug. 21, 2008); Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 (S.D.N.Y. 2007) aff'd, 2008 WL 3852180 (2d Cir. Aug. 19, 2008)).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. sect 1415 (f)(3)(E)(i) ). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak v. Florida Union Free Sch. Dist., 142 F. 3d 119, 130 (2d Cir. 1998); see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education" not one that provides everything that might be thought desirable by loving parents " (Walczak, 142 F. 3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F. 2d 563, 567 ( 2d Cir. 1989) (citations omitted); see Grim, 346 F. 3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189,199; Grim, 346 F. 3d at 379; Walczak, 142 F. 3d at 132). Nonetheless, the school district must provide "an IEP that is "likely to produce progress, not regression, and..... Affords the student with an opportunity greater than mere "trivial advancement" (Cerra, 427 F. 3d at 195, quoting Walczak, 142 F. 3d at 130 ( citations omitted); see P. v. Newington Bd. of Educ., 546 F 3d 111, 118-19 ( 2d Cir. 2008); Perricelli, 2007 WL 465211 at *15). The IEP must be " reasonably calculated to provide some meaningful benefit " (Mrs. B v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see Rowley, 458 U.S. at 192).

The students recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. sect 1412(a)(5)(A); 34 CFR 300.114 (a)(2)(i), 300.116 (a)(2);8 NYCRR 200.1 (cc), 200.6 (a) (1); see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F. 3d 105,108 (2d Cir. 2007); Walczak, 142 F 3d at 132; E.G. v. city Sch. diet. of New Rochelle, 606 F. Supp. 2d 384,388 (S.D.N.Y. 2009); Patskin v. Bd. of Educ., 583 F. Supp. 2d 422,428 (W.D.N.Y. 2008) ). An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the students’ needs (34 CFR 300.320 (a)(1); 8 NYCRR 200.4 (d)(2)(i); Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3,2008), establishes annual goals related to those needs (34 CFR300.320 (a)(2); 8 NYCRR 200.4 (d)(2)(iii)), and provides for the use of appropriate special education services (34 CFR 300.320 (a)(4); 8 NYCRR 200.4(d)(2)(v); see Application of the Dep't. of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't. of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for unilateral placement has the burden of proof regarding the appropriateness of such placement (educe. Law sect 4404 (l)(c); see M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256 at *7 (S.D.N.Y. Aug. 27, 2010) ). Under the second criteria of the legal standard, the Parent bears the burden of showing that the private school placement selected is appropriate. (Application of a Child with a Disability, No 95-57, Application of a Child with a Disability, No. 94- 29,Application of a Child with a Disability, No. 93-34) The Parents must show that the private school placement offers an educational program that meets the student’s special education needs. (Burlington, 471 U.S. at 370, Application of a Child with a Disability, no. 94-20) The private school need not be approved by the state educational agency to provide instruction to children with disabilities. Florence County School District Four et. Al. v. Carter, 510 U.S. 7 (1993)). It is also not required that the private school employ certified special education teachers, or have its own IEP for the student. (Application of a Child with a Disability, No. 94-20) Finally, the third criterion of the Burlington standard requires a balancing of the equities in determining whether reimbursement should be awarded.

I begin by noting that I credit the testimony of all the witnesses who appeared at the hearing. The Decision as stated below is based on the testimony and evidence presented at the hearing, which is detailed above with appropriate citations to the record. Did the DOE offer the student a FAPE/Prong I?

The first step is to determine whether the DOE offered to provide the student a FAPE. (Mrs. C. v. Voluntown, 226 F. 3d 60,66 (2nd Cir. 2000) (1982)).

The DOE offers no evidence nor are witnesses called to support that a FAPE was offered to the student for the 2022-2023 school year. The DOE did not present a case and concedes Prong I.(Tr. 29) The DOE rests without producing any evidence nor witnesses to support, waives making an opening statement and declines to cross-examine any of the affiants.

The SRO has found that allegations that are left unchallenged are deemed as true “unless found to be inconsistent with the evidence in the record.” Application of a Student with a Disability, 01-044 (SRO March 27, 2002). The DOE’s silence at hearing has the effect of conceding every point alleged by the parent against the DOE unless it is inconsistent with the hearing record. Based upon the aforementioned I find the DOE denied the student a FAPE for the 2022-2023 school year.

Prong II

Having found that a FAPE has not been offered I will look to the appropriateness of the Parent’s unilateral placement.

The DOE states on the record they will not be contesting the appropriateness of the Parents unilateral placement and concede the placement is appropriate. (Tr. 184) The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.

No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.

Gagliardo, 489 F.3d at 112; see, Frank G., 459 F.3d at 364-65.

With respect to the relief of tuition reimbursement, the regulations and case law are quite clear, the parent’s shoulder the burden of proving that the unilateral placement for the Student is appropriate. The case law that has developed is equally clear that this appropriateness of the unilateral placement is not as rigid as the Rowley standards for the District, the parent’s however must still prove that the unilateral placement is sufficiently unique to address the unique needs of the Student. Taking this one step further, the unilateral placement must not be a “one size fits all”approach but tailored to address the unique needs of the student and that this tailored instruction must show some benefit for the Student. Parents need not show that the placement provides every special service necessary to maximize the student's potential. (Frank G., 459 F.3d at 364-65). When determining whether the parents' unilateral placement is appropriate, “[u]ltimately, the issue turns on ‘whether that placement is "reasonably calculated to enable the child to receiveeducational benefits." (Frank G., 459 F.3d at 364; Gagliardo, 489 F.3d at 115).

The Parents have more than sufficiently supported their burden of the appropriateness of [REDACTED].

Based upon the evidence submitted more particularly Exhibit E and testimony of [REDACTED], coupled with the DOE’s silence I find that [REDACTED] was an appropriate placement for the student for the 2022-2023 school year.

Prong III

DO THE EQUITIES FAVOR THE PARENTS?

The third prong of the Burlington test requires the parent to demonstrate that the equities favor their claim for reimbursement.

To prevail on a claim for tuition reimbursement, “equitable considerations [must] support the parents’ claims.” M.C., 226 F.3d at 68; Burlington, 471 U.S. at 370, 374; Carter, 510 U.S. at 16. Such equitable considerations include “the reasonableness of the parties’ positions.” Burlington, 736 F.2d at 801-802. Indeed, the IDEA states that tuition reimbursement may be “reduced or denied . . . upon a judicial finding of unreasonableness with respect to actions taken by the parents.” 20 U.S.C. § 1412(a)(10)(c)(iii)(III).

The DOE representative contests the equities –Prong III in that there is no enrollment contract in the record and that [REDACTED] is a non-public school .The DOE attorney notes that if the Parent could show what the cost of [REDACTED] is they would be satisfied. (tr. 186-187) [REDACTED] the schools witness explained the Parents are not billed and during closings the Parent submits a bill for the 12 month program entered as IHO II.

In light of the fact that the evidence and testimony support that the Parent fully cooperated with the CSE and did nothing to impede their creating an IEP, notified the DOE of her intent to unilaterally place the student, (Ex. B) based on the aforementioned, I find the equities favor the Parent.

For all the foregoing reasons, The Parents requests that the DOE fund the students 12 month tuition and placement at [REDACTED] in an amount not to exceed $70, 736 allocated as follows: $60,631 for the students 10 month tuition program and $10,105 for the students summer tuition program

ORDER

For reasons indicated herein, it is ORDERED

• that the Department of Education failed to Provide the student with a FAPE for the 2022-2023 school year.

• The program at the [REDACTED] was an appropriate placement for the student for the 2022-2023 school year.

• There are no equitable considerations that would bar the Parent from the requested relief.

• Upon Proof of the students’ attendance, the DOE is fund the cost of [REDACTED] 12 month tuition and placement for the 2022-2023 school year to [REDACTED] in a total amount not to exceed $70,736.00 to be allocated as follows: $60,631 for the students 10 month tuition program and $10,105 for the students summer tuition program.

November 13, 2023

Tina Millman Esq.

Impartial Hearing Officer

PLEASE TAKE NOTICE

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 plan 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 parties' petition 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

EVIDENCE ENTERED INTO THE RECORD

DOE EXHIBITS

None

PARENTS EXHIBITS

A. Exhibit Date Title Number of Impartial Hearing Request 09/07/2022 3 pages

B. Individualized Education Program 06/10/2020 17 pages

C. Pendency Program Agreement 01/10/2023 2 pages

D. Letter to CSE [REDACTED] Chairperson with Receipt Confirmation 08/23/2022 2 pages

E. 2022-2023 School Year [REDACTED] Progress Reports (First and Second Quarter) N/A 7 pages

F. [REDACTED] Programs Description 09/14/2022 1 page

G. 2022-2023 School Year Schedules (Summer and School Year) N/A 2 pages

IHO EXHIBITS

II. I PARENT CLOSING BRIEF 5 9/27/23 09/28/23 AFFIDAVIT OF SERVICES/TUITION 5 Offered admitted 9/28 9/27/23