New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 235776

Student’s Name: [REDACTED]

Date of Birth: [REDACTED]

District: [REDACTED]]

Hearing Requested by: [REDACTED], Parents

Date of Hearing: January 9, 2023

February 9, 2023

Record Close: September 28, 2023

Hearing Officer: ANNETTE HICKS GILL, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

DECEMBER 5, 2023 *

For the Student:

[REDACTED], ESQ., Attorney

For the Department of Education:

NONE

NAMES AND TITLES OF PERSONS WHO APPEARED

DECEMBER 14, 2023 *

For the Student:

[REDACTED], ESQ., Attorney

For the Department of Education:

NONE

NAMES AND TITLES OF PERSONS WHO APPEARED

JANUARY 9, 2023 *

For the Student:

[REDACTED], ESQ., Attorney for the Parent

For the Department of Education:

NONE

NAMES AND TITLES OF PERSONS WHO APPEARED

FEBRUARY 9, 2023 *

For the Student:

[REDACTED], ESQ., Attorney for the Parent

[REDACTED], Parent Student

[REDACTED], Director at the Jewish Center for Special Education

For the Department of Education:

NONE

* 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] and [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 first hearing convened January 9, 2023. The hearing reconvened on January 9, 2023. All appropriate extensions were granted, and the record closed on September 28, 2023.

DISTRICT AND PARENT POSITIONS

The Due Process Complaint (DPC) dated September 8, 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).

At hearings on January 9, 2023 and February 9, 2023, the District did not appear and therefore offered no documentary or oral evidence. The Parent offered documentary evidence including an affidavit of the Student’s father, and [REDACTED], the director at the [REDACTED] gave oral testimony in support of the claims outlined in the DPC.

FINDINGS OF FACT

[REDACTED] is an [REDACTED]-year-old student who is classified by the CSE as a student with an Intellectual Disability. [REDACTED] presents with significant global academic delays; he demonstrates cognitive and processing delays as well as receptive, expressive, and pragmatic language delays. He is easily distracted and struggles with impulsivity, self-regulation, and a low frustration tolerance. [REDACTED] also presents with social/emotional and behavioral delays, limited [REDACTED] skills as well as delayed fine and gross motor skills and difficulties with sensory processing. [REDACTED]’s constellation of needs requires that he attend a small academic program that can provide him the requisite amount of small group and 1:1 instruction, attention, and support that he needs to receive to make academic progress and receive an educational benefit.

He currently attends the [REDACTED]. 2017 to 2022 School Years [REDACTED]’s needs are well known to the District.

On March 19, 2019, the Impartial Hearing Officer (“IHO”) assigned to hear the matter issued a Findings of Fact and Decision in which the IHO found that the district failed to provide [REDACTED] with a FAPE for the 2017-2018 and 2018-2019 school years, and that the [REDACTED] was an appropriate placement for both years. The same IHO further found that equities favored [REDACTED]’s parents and ordered the district to fund his tuition and related services at the [REDACTED] for the 2017-2018 and 2018-2019 school years. This decision was not appealed and is therefore, final.

On March 19, 2019, the Impartial Hearing Officer (“IHO”) assigned to hear the matter issued a Findings of Fact and Decision in which the IHO found that the district failed to provide [REDACTED] with a FAPE for the 2017-2018 and 2018-2019 school years, and that the [REDACTED] was an appropriate placement for both years. The same IHO further found that equities favored [REDACTED] r’s parents and ordered the district to fund his tuition and related services at the [REDACTED] for the 2017-2018 and 2018-2019 school years. This decision was not appealed and is therefore, final.

On March 7, 2019, the CSE convened to develop an IEP for [REDACTED] for the 2019-2020 school year. Ultimately, [REDACTED]’s tuition and related services costs at the [REDACTED] were publicly funded pursuant to the pendency principles of the IDEA. [REDACTED]’s placement at the [REDACTED] and related service costs for the 2020-2021school year were publicly funded pursuant to the pendency principles of the IDEA. [REDACTED]’s placement at the [REDACTED] and related service costs for the 2021-2022 school year were publicly funded pursuant to the pendency principles of the IDEA. The 2022-2023 School Year

On March 10, 2022, the CSE developed an IEP for the Student for the 2022-2023 school year.

The position of the student’s attorney is that the resulting March 10, 2022, IEP is wholly inappropriate. It is alleged that the CSE failed to conduct sufficient assessments of [REDACTED] prior to the March 2022 IEP review, as it failed to evaluate [REDACTED] in all areas of suspected disability.

Through their attorney, the parents contacted the district in writing, indicating their concerns with the IEP and proposed placement. To date, the district has failed to adequately address these concerns. Absent an appropriate IEP and public-school placement for the district, [REDACTED]’s parents continued his enrollment at the [REDACTED] for the 2022-2023 school year. Pursuant to the parent’s affidavit dated February 1, 2023:

When [REDACTED] was 7 years old he began attending the [REDACTED] (“[REDACTED]”) and has been there since. The student’s placement at [REDACTED] has been funded through a settlement agreement, pendency agreements or a Final Decision from an Impartial Hearing Officer. Testimony of Director of the [REDACTED] Witness for the Student [REDACTED], the director at the [REDACTED] testified that their program is a self-contained program for students who are unable to make progress in general education due to 1. either learning disabilities, speech and language 2. delays, cognitive delays, behavioral and emotional 3. and social delays. [REDACTED] testified that [REDACTED] needs s a lot of prompting to engage in either conversation with his peers and teachers and with group activities. He presents with a lot of delays that really impact his academic progress. For example, he presents with cognitive delays, very weak comprehension and memory skills, poor executive functioning skills. He tires easily. He has very low endurance. He also has delays in expressive, receptive, and pragmatic language skills. He's very easily distracted and it's difficult for him to focus, and he really needs ongoing prompting and redirection. At the beginning of this year, he was at 4th grade level.

He needs small group instruction and just charts and diagrams and graphic organizers to help him with his weak comprehension skills. During the 2022 to 2023 school year, he has demonstrated progress in terms of his socialemotional and behavioral needs. He has become more grounded, more responsive.

He receives speech and language therapy. Physical therapy, occupational therapy, and counseling.

She further testified that they provide the direct social skill instruction, pre-vocational skills, incorporate life skills into his math and reading so that he is being prepared to lead a more independent life when he graduates. Finally, on March 10, 2022 the CSE reviewed the student’s IEP for the 2022-2023 school year. The CSE recommended the student attend a District 75 Special Class for Math, ELA, Social Studies and Sciences, among other recommendations. Prior to the March 2022 meeting the parent swears that CSE did not conduct any updated assessments.

On August 26, 2022, the parent signed a contract for the cost of tuition and related services provided by [REDACTED] for the 2022-2023 school year in the total amount of $92,360.00 The parent has not made any payments toward the cost of tuition and related services and swears that he is unable to make upfront, out-of-pocket payments due to financial hardship.

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, sufficient supporting documentary evidence and witness testimony supports the position that the child was not provided with a FAPE for the 2022-2023 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 created in March of 2022 provided [REDACTED] with a free and appropriate public education.

Additionally, the District failed to present any testimonial or documentary evidence to support that the recommended program, Q256 at Q262, could provide [REDACTED] with appropriate services or implement the March 2022 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. In order 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 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 District of their disagreement with the proposed placement their intentions to place their 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 Director 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 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 2022-2023 school year.

2. The New York City Department of Education shall fund tuition at the [REDACTED] for secular portion of tuition for the 2022-2023 school year. Reimbursable tuition shall be reduced by the percentage of the school day utilized for Bible Studies and Prayer.

IT IS SO ORDERED.

Dated: October 9, 2023

Annette HIkcs 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. Exhibit Date Title Number of Impartial Hearing Request 9/08/2022 5 pages

B. /19/2019 20 pages

C. [REDACTED] Program Description Undated 2 pages

D. Student Schedule 2022-2023 1 page

E. Student Attendance Records 12/27/2022 1 page

F. Enrollment Contract with Addendum 8/26/2022 3 pages

G. Tuition Affidavit 12/27/2022 1 page

H. Academic Goals 10/2022 11 pages

I. Counseling Goals 10/2022 1 page

J. Occupational Therapy Goals 10/2022 2 pages

K. Physical Therapy Goals 10/2022 1 page

L. Speech Language Therapy Goals M 09/2020- 06/2021 Physical Therapy Goals 1 10/2022 1 page

N. Affidavit of Testimony of [REDACTED] 02/01/2023 3 pages

O. Letter from Parents to CSE with E-mail Confirmation 8/23/2022 3 pages