New York City Department of Education, Impartial Hearing Decision

NAMES AND TITLES OF PERSONS WHO APPEARED

NOVEMBER 2, 2022

For the Student:

[REDACTED] Parent Attorney

For the Department of Education:

[REDACTED] DOE Consultant Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

DECEMBER 1, 2022

For the Student:

[REDACTED] Parent Attorney

For the Department of Education:

[REDACTED] DOE Consultant Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

JANUARY 6, 2023

For the Student:

[REDACTED] Parent Attorney

For the Department of Education:

[REDACTED] DOE Consultant Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

FEBRUARY 7, 2023

For the Student:

[REDACTED] Parent Attorney

For the Department of Education:

[REDACTED] DOE Consultant Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

MARCH 15, 2023

For the Student:

[REDACTED] Parent Attorney

For the Department of Education:

[REDACTED] DOE Consultant Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

APRIL 25, 2023

[REDACTED] Parent Attorney

For the Department of Education:

[REDACTED] DOE Consultant Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

MAY 9, 2023

[REDACTED] Parent Attorney

For the Department of Education:

[REDACTED] DOE Consultant Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

JUNE 20, 2023

For the Student:

[REDACTED] Parent Attorney

[REDACTED] Parent/Mother

[REDACTED] Special Education Teacher and Administrator

at [REDACTED]

For the Department of Education:

[REDACTED] DOE Consultant Representative

INTRODUCTION

On October 17, 2022, New York City Department of Education (DOE) appointed me to act as the impartial hearing officer (IHO) in a case brought under the Federal Individuals with Disabilities Education Act (IDEA) [20 USC §1415(f)(3)] (“IDEA”) by the parent (Parent) of [REDACTED] ([REDACTED]) for the school year 2022/23. The Parent requested the hearing by filing an impartial hearing request with the NYC Department of Education (DOE) on or about September 13, 2022. The Due Process Complaint (DPC) is carried under New York City (“NYC”) Case No: 237703. The impartial hearing was held over a series of dates, to complete the record on June 20, 2023. The timelines have also been extended to allow the parties opportunity to fully prepare, secure witnesses and obtain transcripts. The record officially closed on August 10, 2023. A list of persons who appeared at the hearing and the documents entered into evidence is annexed hereto.

BACKGROUND AND POSITIONS OF THE PARTIES

[REDACTED] is a student classified by the CSE as a student with an “Intellectual Disability”. He is diagnosed with Attention Deficit Hyperactivity Disorder (ADHD), Developmental Coordination Disorder, and Language Disorder-Receptive and Expressive Language Delays He also has significant academic deficits in Reading, Writing, and Math, and demonstrates significant delays in his receptive and expressive language skills, attention/concentration skills, executive functioning skills, visual-spatial skills, fine and gross motor skills, auditory skills, sensory skills, processing speed, and working memory (Exhibit A). On or about December 1, 2021, the CSE convened to discuss [REDACTED]’s needs and to develop an IEP. At this time, the CSE review team recommended a 8:1:1 special class in a D75 school with Adapted Physical Education (3 times per week) and related services of counseling, occupational therapy and speech-language therapy (Exhibit A). Further, parent alleges that to date of filing of the DPC, parent has not received a school location letter for the 2022/23 school year (Exhibit A).

The Parent alleged numerous procedural violations and substantive inadequacy and claimed the recommended program and lack of placement amounted to a deprivation of FAPE for the 2022/23 school year. The Parent alleges giving notice to the DOE of its failure to provide [REDACTED] with an appropriate program and placement and of her intent to unilaterally place [REDACTED] at a private placement and seek funding (Exhibits A and B). Subsequently, as a remedy for the DOE’s failure to provide [REDACTED] a FAPE, the Parent filed a DPC and now seeks reimbursement for [REDACTED]’s unilateral placement at the [REDACTED] School ([REDACTED]) for the 2022/23 school year, along with provision of transportation (Exhibit A and T @ 46).

In an effort to support their position, the parent submitted a documentary exhibit package consisting of fifteen pieces of evidence (Exhibits A-O), which included affidavit testimony of [REDACTED], Head of High School at [REDACTED] (Exhibit L) and [REDACTED] (Exhibit O), [REDACTED]’s mother.

At the hearing, the DOE stated in its opening statement that it was waiving presenting its Prong I burden, failed to submit any documentary evidence or present witnesses (T @ 40) and would not be raising any equitable arguments. The DOE merely contended the unilateral placement of [REDACTED] at [REDACTED] not appropriate, opining

“a class size of 10 to 13 students seems too large for this student. It is not appropriate that the student does not have formal counseling built into his schedule,. Having access to a counselor would not be sufficient” (T @ 43, 63).

The DOE opted to cross-examine Parent witnesses.

FINDINGS OF FACT AND DECISION

The Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) was enacted with the primary purpose to ensure that students with disabilities have available to them a free and appropriate public education (FAPE) (20 U.S.C. § 1400[d][1][A]; see Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]; Bd. of Educ. v. Rowley, 458 S. Ct. 176, 179-81, 200-01 [1982]; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [2d Cir. 2006]). It is clear that the legislative intent of 20 US Code Section 1412 of the IDEA is to provide a FAPE to all children with disabilities so that these individuals may ultimately lead productive independent lives as adults, to the maximum extent possible (20 U.S.C. Sx 1400[d][1][A]; see Mrs. W v. Tirozzi, 832 F.2d 748 [2nd Cir. 1987]. A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.17; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.22). An IEP is designed as a "written statement" that addresses the educational needs of a child with a disability (20 U.S.C. § 1401[14]; 34 C.F.R. § 300.22; 8 NYCRR 200.1[y]). At the beginning of each school year, a school district is required to have an IEP in effect "for each child with a disability in its jurisdiction" (20 U.S.C. § 1414[d][2]; 34 C.F.R. § 300.323[a]; see also Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 194 [2d Cir. 2005] (finding the district fulfilled its legal obligations by providing the IEP before the first day of school). The student's recommended program must also be provided in the least restrictive environment (LRE) (34 C.F.R. § 300.114[a]; 8 NYCRR 200.6[A][1]). A FAPE is offered to a student when the board of education (a) complied 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 (Bd. of Educ. v. Rowley, 458 U.S. at 176, 206, 207 [1982]). The IDEA directs that, in general, a decision by an impartial hearing officer or state review officer must be made on substantive grounds based on a determination of whether or not the child received a FAPE (20 U.S.C. § 1415[f][3][E][i]). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a FAPE to the child, or (c) caused a deprivation of educational benefits to the child (20 U.S.C. § 1415[f][3][E][ii]; see 8 NYCRR 2005[j][4][ii]). The IDEA mandates that a student with a disability be provided with a FAPE tailored to meet his unique needs and one that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas Cty. Sch. Dist., 580 U.S. ___, 137 S.Ct.988, 999 (2017). A focus on the particular child is at the core of the IDEA. Endrew F., 137 S.Ct. at 999. Under 20 U.S.C. Section 1414(d)(3)(A), the IDEA mandates an IEP team to consider a child’s strengths, weaknesses and deficiencies, as well as the results of the most recent evaluations of the child together with developmental and functional needs of the child. In order to determine the student’s requirements and needs, the team must review and consider evaluations, assessment and information provided by the child’s parents, teachers and service providers and thereon determine the type of program required for the child. A board of education may be required to pay for educational services obtained for a child by the child's parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim. (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; see also Frank R. and Dianne R. v. Bd. of Educ. of Hyde Park,459 F.3d 356 [2d Cir. 2006], cert denied, Board of Educ. of Hyde Park Cent. School Dist. v. Frank R., 2007 WL 2982269 [Oct. 15, 2007].

The case at hand is a tuition reimbursement case and is therefore governed by the holding of the U.S. Supreme Court in Burlington School Comm. v. Dept of Education (471 U.S. 359 [1985]). That case set forth a three-prong test for determining if tuition reimbursement is warranted: (1) were the services offered by the school district inadequate or inappropriate; (2) where the services selected by the parents appropriate; and (3) do equitable considerations support the parents’ claim. Recently enacted state legislation puts the burden of proof for the first prong on the school district and for the second prong on the parent (Chap. 583 of Laws of 2007).

Prong I:

In the instant matter, the DOE bears the burden of presentation and persuasion in all allegations raised in the DPC. Herein, the DOE waived its Prong I burden that it provided [REDACTED] a FAPE, failed to present any witnesses or evidence, merely cross-examining parent witnesses. An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the child’s needs, establishes annual goals and short-term instructional objectives which are related to the child’s educational deficits, and provides for the use of appropriate special education services to address the child’s special education needs. Application of a Child with a Disability, Appeal No 93-12; Application of a Child with a Disability, Appeal No 93-9; Application of a Child with a Handicapping Condition, Appeal No 92-7; Matter of Handicapped Child, 22 Ed Dept Rep 487, March 11, 1983. 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. Id.

Herein, the DOE waived its Prong I burden and therefore no further analysis is required as a FAPE denial is deemed conceded.

Prong II:

Having determined that the DOE did not offer the student a FAPE for the 2022/23 school year, I now proceed to evaluating the appropriateness of the parents’ unilateral placement of the student at [REDACTED]. The parent’s failure to select a program approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Florence County Sch Dist Four v. Carter 510 U.S. 7 [1993]). The private placement need not employ certified special education teachers, Carter, supra. The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of the 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, quoting Frank G., 459 F.3d at 364-65).

In the case at hand, the DOE cross-examination of parent witnesses did not generate a material challenge to parent assertions. Contrarily, the evidence and testimony presented by the parent supports that [REDACTED] was an appropriate placement for [REDACTED] during the 2022/23 school year. I credit the evidence and testimony (Exhibits E-H, L and O) submitted by Parent and find it establishes that the placement at [REDACTED] was appropriate as it provided a program and services that were directly related to [REDACTED]’s needs and one in which he was able to make meaningful progress. I find the evidence to substantiate the program at [REDACTED] to offer a small supportive environment with intensive 1:1 and small group instruction, modifications and supports, required by [REDACTED] to make progress and one that provided [REDACTED] with acquisition of skills necessary for life after school (Exhibit L, T @ 50-58). Related services are provided and incorporated into the academic program (Exhibit L, T @ 50-58).

Based upon the foregoing, I therefore find that [REDACTED] was an appropriate placement for [REDACTED] for the 2022/23 school year. The record reflects [REDACTED] provided a rich supportive environment that correlated well with [REDACTED], that the curriculum was specifically tailored to meet [REDACTED]’s needs and that he received a highly individualized instruction that enabled him to make appropriate progress. Based upon the foregoing, I find that the student made meaningful progress at [REDACTED] for the 2022/23 school year across the board: academically, socially and emotionally. The record reflects that [REDACTED] was a placement that was “specifically designed to meet the unique needs” of the student Frank G, supra and that [REDACTED] has made progress therein (Exhibits I-J).

Prong III:

Having found [REDACTED] an appropriate placement, I now consider equitable considerations, the final criterion for a reimbursement award. In weighing the equities, “the critical consideration, as the Court sees it, is whether they have cooperated in good faith to attempt to develop an IEP to the maximum extent possible, Schaffer, supra. There is nothing in the record to show that the parents were anything other than cooperative. The DOE did not present any evidence or testimony regarding the equity considerations for the 2022/23 school year. All indications are that the Parent cooperated with the DOE and did not interfere in any way with the DOE’s obligation to provide a FAPE for the Student for the 2022/23 school year. [REDACTED]’s Parents timely put the DOE on notice of [REDACTED]’s unilateral placement and their intent to seek reimbursement (Exhibit B).

This case involves a situation where the Parent’s financial circumstances limits her ability to make payment to [REDACTED] (Exhibit O and T @ 60). [REDACTED] testified that the family income renders a hardship to pay the annual tuition. Established case law warrants a finding that under such circumstances a school district must pay the monies owed, assuming parent’s claim is meritorious with regard to the three Burlington factors. In Conners v. Mills, 34 F. Supp. 2d 795 (N.D.N.Y.) at 805, the court reasoned:

“By prohibiting prospective placement, Defendants would deny assistance to families that are not able to front the cost of a private, non-approved school, without exception…Given the fragile state of many disabled children, and their dire need for constant and consistent care, even brief periods of inappropriate schooling could lead to tremendous educational, social, emotional and psychological deterioration. Families of greater economic means would not be faced with such a grim prospect. It simply cannot be the case that an act designed to grant “all” disabled children access to needed services could undermine that very goal by making such access dependent upon a family’s financial situation.”

I find (1). that the DOE failed to offer the student a FAPE for the 2022/23 school year, (2). that the unilateral placement of the student at [REDACTED] was appropriate (3). that the program at [REDACTED] was “reasonably calculated” to provide [REDACTED] with meaningful educational benefits and (4). that equitable considerations weighed in favor of the parents’ request for reimbursement for all costs associated with the placement of the student at [REDACTED] for the 2022/23 school year. Based upon the foregoing,

ORDER

1. It is hereby ordered that within thirty (30) days of receipt of this Order, the Department of Education shall directly fund/reimburse the cost of the student's tuition at the [REDACTED] for the 2022/23 school year, in the amount of $87,362.00. All payments shall be supported by the presentation of appropriate documentation;

2. It is hereby ordered that the DOE shall provide transportation to and from the unilateral placement; and

3. It is hereby ordered that the DOE shall reimburse the cost of private transportation in the amount of $134.40.

This Order excludes any sessions that may have been previously paid by the DOE pursuant to any Pendency Agreement.

Dated: August 15, 2023

Maria R. Dispenza

MARIA R. DISPENZA, ESQ.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

PLEASE TAKE NOTICE

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.

DOCUMENTATION ENTERED INTO THE RECORD ON JUNE 20, 2023

A. Parent: Impartial Hearing Request, 09/12/22 -6pp

B. Ten Day Notice with Confirmation, 08/23/22 -3pp

C. [REDACTED] Program Handbook, June 2022/23 -13pp

D. Class Schedule, 2022/23 -1pp

E. Quarter I, 2022/23 Progress Report, Fall 2022 -14pp

F. First Semester 2022-23 Progress Report, Fall 2022 -10pp

G. Therapy Interim Report, January 2023 -3pp

H. Quarter 3 2022/23 Progress Report, Spring 2023 -17pp

I. Tuition Affidavit, 04/03/23 – 1pp

J. Enrollment Contract, 09/17/22 -6pp K. Taxi Receipts, 01/23/23-01/24/23 – 1pp

L. Affidavit of [REDACTED], 06/16/23 -9pp

M. Pendency Form, 12/29/21 -2pp N. Finding of Facts and Decision Case #201029, 06/08/21 -10pp

O. Affidavit of [REDACTED], 06/19/23 -4pp