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CASE NUMBER: 588251 - NYC: 239458
FINDINGS OF FACT AND DECISION
Student’s Name [1]: [REDACTED] (“Student”)
Date of Birth: [REDACTED]
School District: # [REDACTED]
Hearing Requested by: [REDACTED] (“Parent”)
Request Date/Date Complaint Filed: 09/23/2022
Date(s) of Hearing: 02/17/2023; & 04/18/2023
Actual Record Closed Date: 05/17/2023
Date of Decision: 05/31/2023
Date of Distribution if Different than Decision Date: n/a
Hearing Officer: Harry A. Christodoulou
NAMES AND TITLES OF PERSONS WHO APPEARED
FEBRUARY 17, 2023:
For the Student:
[REDACTED] (hereinafter referred to as “Parent’s representative”)
For the Parents:
For the Department of Education:
[REDACTED] (hereinafter referred to as “District’s representative”)
Other:
Observers (defined on page 21)
NAMES AND TITLES OF PERSONS WHO APPEARED
APRIL 18, 2023:
For the Student:
Parent’s representative
For the Parents:
[REDACTED] (hereinafter referred to as “Parent’s Witness 2”)
For the Department of Education:
District’s representative
BACKGROUND AND PROCEDURAL HISTORY
Student is a [REDACTED]-year-old classified as a student with a disability under the Individuals with Disabilities Education Act (“IDEA”). Student’s eligibility for special education supports and services is not in dispute.
On September 23, 2023, Parent, through Parent’s representative firm, filed a due process complaint (“DPC”) against the New York City Department of Education (“DOE” or “District”) pursuant to the IDEA (Ex. DOE-1). I was appointed on December 21, 2022, to preside over the claims in the DPC in terms of New York State regulations, and to conduct an impartial hearing (“IH”) pursuant to 20 U.S.C. § 1415(f) and New York State Education Law § 4404(1) to determine the claims in the DPC concerning Student’s special education program.
It is asserted in the DPC that, based on numerous procedural and substantive grounds, the DOE failed to offer Student a free and appropriate public education (“FAPE”). Parent sought, inter alia, a finding that the DOE denied Student a FAPE for the 2022-2023 school year (“SY”), an interim order for the Independent Educational Evaluations (“IEEs”); and an order that the DOE reimburse Parent for tuition paid and transportation costs for Student’s attendance at the Attending School (defined on page 21) for the 2022-2023 SY (Ex. DOE-1-7, & DOE-1-8).
The parties initially sought, and were afforded, time to try resolve the matter, which did not result in the matter being resolved. A limited hearing was held on February 17, 2023 to address Parent’s request for an interim order for IEEs. These were denied pursuant to my Order on IEEs dated March 2, 2023 (Ex. IHO-II) (T. P14-P40). The IH on the merits was scheduled for, and took place on, April 18, 2023. District’s representative and Parent’s representative filed closing briefs on May 15, and May 16, 2023, respectively (Ex. IHO-III, & IHO-IV).
JURISDICTION
A decision in this matter is being rendered pursuant to the IDEA[2] and its implementing regulations,[3] and the New York State Education Law[4] and its implementing regulations. [5]
PARTIES’ POSITIONS AND CASES PRESENTED
District’s representative confirmed at the IH that the DOE was not putting on a case in the sense that the DOE was not calling any witnesses but was planning to rest on the documents.
The DOE had submitted seven exhibits at the limited hearing, six of which were admitted to the record and one withdrawn as it was a duplicate of an exhibit in Parent’s disclosure. There were no formal objections to any of the DOE’s documents that were admitted at the limited hearing (T. P21, & 22). No additional documents were put forward by the DOE at the IH. The DOE was not conceding that it failed to provide Student with a FAPE for the SY at issue (T. P65). District’s representative waived the DOE’s opening and closing statements (T. P65, & P78). District’s representative confirmed that the DOE rested its case (T. P69).
Parent’s representative made an opening statement (T. P73-P77) and submitted twenty-two documents in support of the Parent’s case. There were no formal objections to any of the documents being admitted at the main hearing, save for an objection to Ex. P-T, which was subsequently addressed on the record and the exhibit was admitted (T. P22, P23, P66, P67, P69-P72, P78, & P101). There were two affidavits in Parent’s disclosure (Ex. P-U, & P-V). District’s representative waived the right to cross-examine Parent’s witnesses (T. P78).
All exhibits that are admitted to the record are listed below (see Appendix B).
ISSUES IN DISPUTE
The District relies on the record in support of its Prong I burden and Prong III equitable issues (Ex. IHO-III-1), which must be determined; Parent also seeks a determination that the placement of Student at the Attending School (define on page 21) was appropriate in the current SY (Prong II) (T. P76), which the District contends Parent failed to meet (Ex. IHO-III-1). More specifically, the District contends that Parent failed to prove a financial obligation to pay tuition to the Attending School and requests that Parent’s claims be denied (Ex. IHO-III-2, & IHOIII-3). Although neither the DOE nor Parent expressly addressed equitable considerations at the IH, which would or would not preclude or diminish an award, it is asserted in the DPC that Parent co-operated with the DOE and that no equities would bar the relief sought by Parent (Ex. DOE-1-6). Additionally, Parent’s claim for Student’s transportation to and from the Attending School must be determined (T. P76).
PREVAILING PARTY
Parent is the prevailing party, having found that Student was denied a FAPE for the 2022-2023 SY, the Attending School was and is an appropriate for the SY at issue, and that no equitable considerations bar Parent’s relief.
LEGAL FRAMEWORK
A FAPE is offered to a student when: (a) the DOE complies with the procedural requirements set forth in the IDEA, and (b) the Individualized Education Program (“IEP”) developed by its Committee on Special Education (“CSE”) through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits [6].
If a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies: (a) impeded the student'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 student, or (c) caused a deprivation of educational benefits [7].
The IDEA directs that, in general, an IH officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE [8].
A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" [9]. To show a denial of a FAPE based on a failure to implement an IEP, a party must establish more than a de minimus failure to implement all elements of the IEP, and instead must demonstrate that the school board or other authorities failed to implement substantial or significant provisions of the IEP [10]. Courts have held that it must be ascertained whether the aspects of the IEP that were not followed were substantial, or in other words, "material" [11].
The IDEA does not automatically require the provision of school services during the summer months for all students with disabilities; rather, such services must be provided when they are a necessary element of a FAPE for the student. [12]
The DOE may be required to pay for educational services obtained for a student by the student’s parent, if the services offered by the DOE were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent’s claim.[13]
School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement or direct funding for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement – which is applicable in this case. [14]
FINDINGS OF FACT AND DECISION
[I] Denial of a FAPE:
The Supreme Court has found that “[a] reviewing court may fairly expect those authorities [school district staff] to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” [15]
Although the DOE has not conceded that it failed to provide Student with a FAPE for the SY in issue, it elected not to call any witnesses to testify to offer any explanation let alone a “cogent and responsive” one. Ordinarily I would seek to determine if the program provided for the 2022-2023 SY was reasonably calculated to enable Student to make progress appropriate in light of Student’s circumstances, based on a preponderance of all the evidence on record.
In making such a determination, I would be mindful that school districts are not required to “maximize” the potential of students with disabilities,[16] but must provide “an IEP that is ‘likely to produce progress, not regression,’ and ... affords the student with an opportunity greater than mere ‘trivial advancement.’” (my emphasis).[17] The IEP must have been “reasonably calculated to provide some ‘meaningful’ benefit.” [18]
Moreover, any after-the-fact evidence on record which was unavailable to the CSE should not be considered in such a determination and cannot be used to assess the CSE's recommendations at the time they were made. [19]
This case however does not require such an assessment and determination to find that the DOE failed under its Prong I burden, even though Parent submitted evidence, both documentary and testimony, to support Parent’s assertion that “the DOE failed to offer [a] FAPE to [Student] for the 2022-2023 school year in that it developed Individualized Education Plans (“IEP”) on September 21, 2021 and October 15, 2021 that are not reasonably calculated to provide appropriate educational benefits to [Student’]” (“DOE-1-4).
The DOE had disclosed six documents in support of its position that the DOE provided Student with a FAPE for the 2022-2023 SY (Ex. DOE-2 through DOE-7 20). The second of these exhibits is the DOE’s Prior Written Notice (“PWN”) and School Location Letter (Ex. DOE-3). In this document, Parent was informed that the services recommended on the IEP developed at the IEP meeting held on October 15, 2021 would be provided at Proposed School (defined on page 21) (Ex. DOE-3-5).
It is asserted in the DPC (Ex. DOE-1-4), inter alia, that “[p]ursuant to 34 CFR 300.323(a) and 8 NYCRR 200.4(e)(1)(ii), the DOE is required to both offer a seat in a special education program and develop a current IEP that is transmitted to the parents of a special education student prior to the commencement of the school year. The DOE has not met its obligations under the regulations for the 2022-2023 school year as to [Student]. As [Student] was unilaterally placed for the 2021-2022 school year, a seat in an appropriate program should have been offered to [Student] for the 2022-2023 school year by the CSE. The failure of the DOE to comply with the regulations as set forth above is also a denial of FAPE to [Student] for the 2022-2023 school year” (my emphases). These was also raised in Parent’s ten-day notice (Ex. P-A-2).
Generally, the sufficiency of the program offered by the district must be determined on the basis of the IEP itself.[21] The Second Circuit has explained that "[s]peculation that the school district will not adequately adhere to the IEP is not an appropriate basis for unilateral placement". [22]
20 Although Ex. DOE-4 was withdrawn, it is a duplicate of Ex. P-C and was withdrawn for that reason.
Accordingly, when a parent brings a claim challenging the district's "choice of school, rather than the IEP itself . . . the appropriate forum for such a claim is 'a later proceeding' to show that the child was denied a free and appropriate public education 'because necessary services included in the IEP were not provided in practice'".[23] Therefore, if the student never attends the public schools under the proposed IEP, there can be no denial of a FAPE due to the parent's suspicions that the district will be unable to implement the IEP. [24]
Additionally, the Second Circuit indicated that such challenges are only appropriate if they are evaluated prospectively (as of the time the parent made the placement decision) and if they were based on more than "mere speculation" that the school would not adequately adhere to the IEP despite its ability to do so.[25] In order for such challenges to be based on more than speculation, a parent must allege that the school is "factually incapable" of implementing the IEP.[26] Such challenges must be based on something more than the parent's speculative "personal belief" that the assigned public-school site was not appropriate.[27] In the case at hand Parent’s challenge is based on more that Parent’s mere speculation.
Parent testified by way of affidavit (Ex. P-V-4, & P-V-5), inter alia, that: she contacted the school where Student was recommended to attend after the September 2021 IEP meeting; after speaking to the principal about the 12:1+1 program, she learned that students are placed in the class based on having an IEP and students of different classifications, behavioral needs, and academic functioning would be grouped in the 12:1+1 class in a community school at the proposed School. Parent asserts that the program does not offer the reading and writing support that Student needs to continue to make meaningful academic progress. These objections however may rightly be construed as impermissible challenges.
At the IH however Parent’s representative made a request to call Parent to testify in person (virtually) specifically to address the factual issue that the Proposed School does not have a sixth grade (T. P101, & P102), which request was granted.
Parent testified that: she received the PWN and a recommendation for a school, or a placement letter, identifying the Proposed School and stating that she is familiar with the school; she knows the grades it services, namely K through 5; Student “is currently in grade till this year 2022-2023 school year” in the sixth grade; Student would not have been able to attend the Proposed School for the 2022-2023 SY because they only go up to fifth grade; and that the DOE recommended “nothing besides an elementary school” (T. P103-P104). I confirmed with Parent that the proposed School was the only recommendation received based on this most recent IEP meeting (T. P104).
In C.R. v. New York City Dep't of Educ . 28 the Court found on the facts that because none of Parent’s placement challenges were permissible, “the school district did not have the burden to produce evidence demonstrating [school’s] adequacy in response to these arguments” (quoting M.O., 793 F.3d at 245). The Court did however note that:
“The Second Circuit has recently clarified that the law "does not foreclose all prospective challenges to a proposed placement school's capacity to implement a child's IEP." M.O., 793 F.3d at 244. To be sure, "[s]peculation that the school district will not adequately adhere to the IEP is not an appropriate basis for unilateral placement." R.E., 694 F.3d at 195. However, it is not speculative to "prospectively challenge a proposed placement school's capacity to implement a child's IEP." M.T. ex rel. H.T. v. N.Y.C. Dep't of Educ., No. 14 Civ. 10124 (GHW), 2016 WL 1267794, at *6 (S.D.N.Y. Mar. 29, 2016) (emphasis added). "To conclude otherwise would require parents to send their child to a facially deficient placement school prior to challenging that school's capacity to implement their child's IEP, which is ‘antithetical to the IDEA'[s] reimbursement process.’" M.O., 793 F.3d at 244-45 (quoting V.S. ex rel. D.S. v. N.Y.C. Dep't of Educ., 25 F.Supp.3d 295, 300
(E.D.N.Y. 2014)).”
In Z.A. v. New York City Dep't of Educ . 29 the Court found on the facts of that case that the basis upon which Parent had relied to reject the placement was not known or expressed at the time Parent’s rejected the placement, and was therefore not a permissible capacity-based ground for rejection of the proposed placement. 30
28 211 F.Supp.3d 583 (2016), 15 Civ. 3051 (ER) [S.D.N.Y. Sep. [30], 2016], (also at 116 LRP 42395). 29 15 Civ. 1539 (KPF) [S.D.N.Y. Sep. 13, 2016], (also at 116 LRP 39379).
Parent testified in her affidavit that she contacted the school where Student was recommended to attend after the September 2021 IEP meeting (Ex. P-V-4, & P-V-5) and ascertained information from the principal pertaining to the 12:1+1 program (addressed above).
When Parent testified in person to specifically address the issue of the Proposed School not having a sixth grade, Parent testified that this was based upon her familiarity with the school. Whether this familiarity was garnered as part of Parent’s conversation with the principal or based upon her knowledge that the school was an elementary school, and thus only servicing grades K through 5, is not clear. The DOE waived its right to crossexamine Parent and therefore has not proven in these proceedings as part of its Prong I burden that Parent did not know that the Proposed School based upon her familiarity of the school was an elementary school at the time Parent rejected the school placement, some several months after having her conversation with the school principal.
Given that both Parent’s ten-day notice and the DPC cite the DOE’s failure to offer a seat (Ex. P-A-2; DOE-1-4), notwithstanding the DOE had sent the PWN and provided a School Location Letter almost ten months prior, suggests that Parent was alluding to the DOE’s failure to offer a seat in a school that had capacity to implement their child's IEP, namely a sixth grade.
Parent’s representative asserted that the DOE still had time to cure the deficiency after receiving Parent’s ten-day notice, but did not do so prior to the start of the SY. Based on the record and the fact that the DOE did not prove that it offered Student a school location or placement for the sixth grade, it did not produce evidence demonstrating the Proposed School’s adequacy in response to Parent’s permissible capacity-based ground for rejection of the proposed placement. I am therefore unable to find that the DOE met its Prong I burden in these proceedings to offer Student a FAPE for the 2022-2023 SY. Accordingly, Parent has met the first criterion of the three-part test set out in the Burlington/Carter case for funding for the cost of the tuition for Student’s placement at the Attending School for the 2022-2023 SY.
[II] Prong II - Appropriateness of the Parent’s Placement:
Parents have the burden of proving that the unilateral placement was appropriate. To meet this burden, parents must establish, by a preponderance of the evidence, that the unilateral placement provides “educational instruction specifically designed to meet the unique needs of the student.” [31]
The private school placement however “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements.”[32] The private school placement must be reasonably calculated to enable the child to receive educational benefits, and must be likely to produce progress, not regression. The standard to apply is whether “[the] unilateral private placement ... provides educational instruction specifically designed to meet the unique needs of a handicapped child.” [33]
The Judges in the Gagliardo case wrote that “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”[34] (my emphases).
In both instances highlighted above, the focus is on the needs of the child, which are individual and unique, and that the placement must reasonably serve those needs to an extent that permits the child to benefit from the instruction. Parental placements are not subject to the same mainstreaming requirements as a school district placement. The private placement need not provide certified special education teachers or an IEP.
Evidence on Record:
Parent’s representative presented testimony by Affiant (defined on page 21) and by Parent and submitted documentary evidence in support of the Parent’s position that the Attending School was an appropriate placement for the 2022-2023 SY.
Affiant testified (Ex. P-U), inter alia, as to:
Affiant’s educational background, credentials, and work experience; title, namely the Director and Principal of the Attending School; Witness’ duties and responsibilities; the students it serves; the number of students and staff members at Attending School for the SY at issue; the student-to-teacher ratio in general but also specific to Student’s class, namely eight students, which is asserted to be appropriate for Student based on Student’s special and unique needs; the school program being based on the principles behind OrtonGillingham (“OG”) instruction and that the program follows those principles as they relate to all academic instruction; and all content area of instruction (science, social studies, and math) being modified to not be dependent on a student’s reading and writing skills, so content can always be delivered in a multi-sensory manner with alternative methodologies to monitor and assess learning.
How all teachers at the school (including Student’s Teachers - defined on page 21) have received training in multi-sensory instruction and have a master’s degree in education or are in the process of completing a master’s degree; how the majority of the school's classroom teachers are state certified, and all of its reading specialists are New York State certified; how Affiant is familiar with Student, who is a sixth grader in the current
SY; how Student’s program continues to be guided by the evidence based methodologies developed to address Student’s specific learning disabilities in reading, writing, and math, as well as to address Student’s Diagnoses (defined on page 21), and implement the recommendations for direct explicit sequential multi-sensory instruction delineated by Parent’s Witness 1 in the neuropsychological evaluation report (Ex. P-C).
How in addition to receiving specialized instruction in the core subjects of ELA, Math, Science and Social Studies, Student also receives individualized reading remediation with an OG trained reading specialist in a ratio of 1:2 four times per week; how the reading remediation sessions concentrate on improving Student’s decoding, encoding, comprehension, and writing skills; how speech/language (“S/L”) services are provided in a small group setting in a ratio of 3:1 two times per week, and the speech pathologist pushes into the classroom setting to observe Student to see how Student is able to handle S/L demands in context; how S/L services target retrieval, executive functioning, receptive, expressive and pragmatic language skills; how Student receives counseling once a week in a group as needed; how Student’s teacher regularly consults with the school’s guidance counselor; how the school staff also observe Student in the classroom on a weekly basis, to help Student grow as a student, while strengthening both Student’s attention and engagement; and how Student is now able to sustain attention longer for 20 minutes and usually return to work after a simple check in or reminder, which is an improvement from when Student first began at the school when Student could not maintain attention and engagement for more than 5 minutes or so depending on the subject.
How Student participates in the school’s regular social emotional group weekly, receiving support to address Student’s distractibility along with strategies to actively address Student’s executive functioning deficits as it impacts Student in the school setting, which strategies help Student with planning, execution, and completion of Student’s schoolwork; how direct sequential multi-sensory instruction is crucial for Student as it supports Student’s learning with other modalities, and such instruction in a small classroom of 8:1 for core subjects and 8:2 for Math improves Student’s focus, attention, retention, and comprehension.
How Student has responded well to the school’s instructional approach, showing meaningful educational gains in all academic areas; how Student benefits from focus prompts, movement breaks, and clear concise scaffolded directions and individual academic support; how Student needs front loaded vocabulary to support content area word usage and to strengthen Student’s lexicon; how Student’s word attack skills improved over a 6-month period since the start of the SY, with Student testing above grade level on a standardized test used; and how Student continues to need to improve cadence and fluency, service to maintain attention and improve Student’s endurance.
How Student continues to need a highly structured and specialized learning environment with minimal distractions and a smaller number of students in a class of no more than 10 students, as Student is still easily distracted; how Student requires small peer working groups, teacher check-ins during instruction to help Student maintain engagement and improve organizational skills; how although Student has made meaningful progress in writing since attending the school, this continues to be an area of challenge for Student; how Student wants to learn and how since September 2022 there has been measurable growth in Student’s ability to self-start and self-monitor Student’s work and Student recognizes when Student needs help; and how Student is more independent but still needs cueing at times to retrieve specific vocabulary and to organize
Student’s output.
How Student’s program is individualized to meet all of Student’s academic, social and emotional needs in a smaller specialized and structured learning environment using research-based methodologies to meet Student’s special and unique needs; how Student requires the smaller class setting offered at the Attending School where Student is supported in the areas of Student’s learning disabilities; how the school is appropriate for Student as Student is making meaningful educational gains and will continue to do so in the 2022-2023 SY given the school’s offering, supports, and ability to meet Student’s management needs; and how all the supports that are provided to Student throughout the school day are crucial to Student’s academic success.
Parent testified (Ex. P-V-5), inter alia, that Student has made appropriate educational gains at the Attending School in the 2022-2023 SY; that the school offers academic, social and emotional support to address Student’s special and unique needs; that it also offers related services to Student, and that Student’s school progress reports in evidence demonstrate that Student had made meaningful educational gains, and further, that the school is appropriate for Student.
I find that the Student’s program at the Attending School is specifically designed to cater to a class or category of students, namely those with special needs who struggle to function in a general education setting, requiring a small class size with a low student-to-teacher (or high staff-to-student) ratio, individualized programming and curricula, and small group instruction. The entire program, including the learning methodologies and the supports provided are designed to meet the needs of this class or category of student and Student falls in this class or category.
The testimony of Affiant, as well as the school’s progress reports for Student (Ex. P-R, & P-S) provides additional information to support how the school specifically tailors the program for Student. This evidence was not disputed through any testimony, or even challenges to any of Parent’s witnesses through cross-examination, and supports Parent’s and Affiant’s assertions that the Attending School was (and is) an appropriate placement for Student.
The testimony of the Affiant and Parent, as well as Parent’s documentary evidence (Ex. P-L, P-R, and P-S) establishes that the Attending School was (and is) appropriate and provides Student with educational instruction that was (and is) specifically designed to meet Student’s unique special education needs, supported by such services that are necessary to permit Student to benefit from instruction, for the 2022-2023 SY.
I also find that based on the Student’s attendance at the Attending School for the 2022-2023 SY, as testified to by Affiant and Parent and reflected in the Attending School’s progress reports (Ex. P-R, & P-S), Student has been making progress during the SY and will likely continue to do so.
Accordingly, Parent has met the second criterion of the three-part test set out in the Burlington/Carter case for funding for the cost of the tuition for Student’s placement at the Attending School for the 2022-2023 SY. Whilst District’s representative addresses Parent’s failure to prove a financial obligation to pay tuition to the Attending School as a Prong II issue (or as part of Parent’s Prong II burden), I address this issue separately below. [III] Prong III - Equitable Factors:
Equitable considerations are relevant to fashioning relief under the IDEA. [35]
The IDEA also provides that reimbursement/funding may be reduced or denied when parents fail to challenge the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. [36]
The IDEA allows that reimbursement/funding may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten business days before such removal, “that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense.” [37]
This 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.” [38]
Although a reduction in reimbursement/funding is discretionary, courts have upheld the denial of reimbursement/funding in cases where it was shown that parents failed to comply with this statutory provision [39].
The hearing record reflects that Parent, through Parent’s representative, notified the CSE by email correspondence dated August 24, 2022 of Parent’s intention to enroll Student at the Attending School and seek public funding for the 2022-2023 SY (Ex. P-A).
I find that in this letter Parents offered sufficient information to put the DOE on notice about Parent’s concerns regarding the CSE’s failure to make an appropriate program and placement recommendation and informed of Parent’s intentions, giving the DOE an opportunity to cure any deficiencies, which is the intent underlying the ten-day notice requirement. [40]
Tuition Amount Claimed: Parent did not disclose a tuition or enrollment contract in terms of which Student was enrolled at the Attending School for the 2022-2023 SY. I address this issue below. Affiant however confirmed, as of April 6, 2023, that the tuition for the Attending School for the 2022-2023 SY is $75,000.00 (Ex. P-U-8).
Parent’s ability and Financial Obligation to Pay:
As to Parent’s ability to pay, Parent testified that the placement for Student at the Attending School is a financial hardship for her because she does not make the income needed to fund Student’s attendance at the school, and that she is a single parent with responsibility for all living expenses and bills (Ex. P-V-5). Parent disclosed a recent tax return [41], namely the return for the 2021 tax year dated March 29, 2022. The return reflects Parent’s Taxable Income (defined on page 21). Given that Parent is a single parent, has responsibility for all living expenses and bills, the amount of Parent’s Taxable Income, as well as the contents of the “Dependents” section of Parent’s tax return, I find that Parent has met her burden of production and persuasion with respect to whether she had the financial resources to "front" the costs of the services.[42] Accordingly, direct payment is an appropriate form of relief.
In District’s representative’s closing brief, it is asserted that Parent’s disclosure does not contain any document purporting to be a contract between Parent and the Attending School, and does not contain any proof of payment. Therefore, Parent is not entitled to an order requiring the DOE to fund the tuition, relying upon three SRO cases in support thereof (Ex. IHO-III-2, & IHO-III-3). In the first case it was uncontroverted that the parent had not signed any tuition contracts with the attending school obligating the parent to pay the student’s tuition for the school years at issue in that case. That is not the case here, as there is no such uncontroverted fact on record before me.
In the second case there was “no persuasive proof of any agreement, either written or oral, between the parent and the agency that delivered SETSS providing that the parent was responsible for the costs of the SETSS services for the 2019-20 school year” (my emphasis). That is also not the case here, as there is proof on record that Parent is responsible for the tuition. Firstly, Parent testifies that the placement for Student at the Attending School is a financial hardship for her because she does not make the income needed to fund Student’s attendance at the school (Ex. P-V-5). The obligation to pay is implied, otherwise there would be no financial hardship on Parent. More importantly however, Affiant states unequivocally in her affidavit that Parent as mother of Student is fully responsible for the payment of tuition. Affiant also confirms that no monies have been received for the current SY (Ex. P-U-8). Whilst a written tuition or enrollment contract was not disclosed, which would have supported Affiant’s testimony, it cannot be said that “the hearing record is devoid of any evidence that the parent is legally obligated to pay” the Attending School for the tuition owed for Student’s attendance during the 2022-2023 SY. For these reasons, the case before me is also distinguishable from the third SRO decision cited in District’s representative closing brief. The DOE waived its right to cross-examine both Parent and Affiant, and therefore this evidence was not challenged.
As asserted in District’s representative’s brief, duly supported with appropriate authority, “the Impartial Hearing Officer is duty bound not to consider such claims that extend beyond the initial request” (Ex. IHO-III-1). Although Parent does seek “J. Full parental reimbursement for tuition paid for [Student]’s attendance at the [Attending School] during the 2022-2023 school year” (Ex. DOE-1-8), the DPC also contains a request for “I. An award of full tuition funding for the 2022-2023 school year for [Student]’s attendance at the [Attending School]” (Ex. IHO-III-7). For the latter claim there is no requirement that there must be proof of payment proffered by Parent, which stands to reason otherwise it would be a claim under the former relief, namely reimbursement. I therefore do not find that the assertion that the record or disclosure does not contain any proof of payment an impediment to the success of Parent’s claim.
I did not find any factors applicable that would have warranted a reduction of the claim for tuition funding. It is asserted in the DPC that: Parent has been cooperative with the DOE in participating in IEP meetings and in complying with the requests of the CSE; there are no equities that would bar the relief being sought by Parent; the equities in this case favor Parent in that Parent has not sought to thwart or otherwise undermine the IEP development process and been completely cooperative with the DOE (Ex. DOE-1-6). Parent testified that she was cooperative with the DOE leading up to the 2022-2023 SY in participating in IEP meetings scheduled by the CSE, and that she also contacted the school where Student was recommended to attend after the September 2021 IEP meeting (Ex. P-V-4).
Parent has therefore met the third criterion of the three-part test set out in the Burlington/Carter case for direct funding for the cost of the tuition for Student’s placement at the Attending School for the 2022-2023 SY.
[IV] Remaining Relief:
As part of the proposed relief in the DPC, Parent had requested: i) full parental reimbursement for tuition paid by Parent; and ii) reimbursement to Parent for Student’s transportation to and from the Attending School until busing is properly implemented (Ex. DOE-1-8). The record does not support a claim for the former request, as Affiant confirmed as of April 6, 2023 that “No monies have been received for the current school year …” (Ex. PU-8). The record does however support a claim for the latter request. Parent testified in her affidavit that: during the 2022-2023 SY, Student’s bus service was bad from the very beginning of the SY through March 2023, and intermittently throughout the current SY; Student would be picked up late and travel on the bus for more than two and sometimes three hours one way to or from school; Parent had to take Student to school and pick Student up numerous times this SY; Parent made many complaints to the DOE Office of Pupil Transportation during the 2022-2023 SY about Student’s busing and nothing was done to change Student’s busing schedule; Student continued to be picked up late and dropped off late; and on some days, the bus did not come at all (Ex. P-V-4).
Parent also testified in her affidavit that she took Student to and from school totaling four trips per day for a total of 34 miles per day for each school day in which Parent had to take and pick up Student from school (Ex. P-V-4). Parent is requesting $.56 per mile for transportation costs over twenty-five school days for this SY for a total of 100 trips (one-way) to and from school on the days Parent transported Student to school. This equates to $476.00. I find the amount reasonable, and not excessive. Given my finding regarding the Attending School and the DOE’s obligation to fund Student’s placement thereat, Parent is entitled to be reimbursed this amount.
Parent’s claim for interim IEEs was denied pursuant to my Order on IEEs (Ex. IHO-II). Parent’s representative asserted at the limited hearing that was scheduled to address Parent’s claim for IEEs that: “The parent is not obligated to dispute something that the district has not done. The district doesn't get an inordinate amount of time beyond the three-year-period for them to engage the process. The law clearly states that process must be engaged every three years when the evaluations are no longer current. The law is very clear on that. So, with that being the case, if the district does not engage the process, then how is a proper IEP supposed to be developed for the student? How is the student's needs supposed to be assessed? How are we supposed to know whether or not the student continues to have disabilities that warrant an IEP? That is why these procedures are in place, so that the district can act as it is obligated to do in a timely fashion, which it has failed to do for a student” (T. P30). If the District has not yet commenced Student’s triannual evaluation, it is being ordered to do so.
ORDER:
Based upon the above Findings of Fact and Decision, it is hereby:
1. ORDERED that, the DOE shall directly fund the cost of tuition for Student’s placement at the Attending School for the 2022-2023 school year in an amount not to exceed $75,000.00 (Seventy-Five Thousand
Dollars), (minus any payments already made by the DOE to the Attending School for the Student’s tuition for the 2022-2023 school year under or in terms of pendency, or “stay-put”), upon receipt by the DOE’s Implementation Unit of: i) The signed tuition/enrollment contract in terms of which Parent enrolled Student at the Attending School for the 2022-2023 SY; and ii) a sworn affidavit or affirmation by Parent confirming that the tuition/enrollment contract presented is the signed tuition/enrollment contract in terms of which Parent enrolled Student at the Attending School for the 2022-2023 SY and obligated Parent to the Attending School in an amount of $75,000.00 (Seventy-Five Thousand Dollars), and that it has not otherwise been cancelled, or terminated.
2. FURTHER ORDERED that, the DOE shall reimburse Parent the sum of $476.00 (Four Hundred, Seventy Six Dollars), for transporting Student to and from the Attending School on twenty-five occasions during the 2022-2023 school year.
3. FURTHER ORDERED that, the DOE shall commence Student’s triannual evaluation with 21 (twentyone) days of the date of this Order if the DOE has not already commenced Student’s triannual evaluation as at the date of this Order.
SO ORDERED.
DATED: May 31, 2023
__H.A.C._ (Signed Electronically)
Impartial Hearing Officer
Harry A. Christodoulou
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 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.
APPENDIX A – REDACTION IDENTIFICATION PAGE
[REDACTED]
APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD [43]
PARENTS’ EXHIBITS
P-A. 10 Day Notice P-B Withdrawn - - 08/24/2022 3 pages
P-C. Neuropsychological Evaluation 10/03/2019 19 pages
P-D. Physical Therapy Rate Letter Undated 1 page
P-E. Speech & Language Rate Letter Undated 1 page
P-F. OT Rate letter 11/08/2021 1 page
P-G. Parent Affidavit 02/14/2023 2 pages
P-H. Parent’s Witness’s Affidavit 02/09/2023 [44] 3 pages
P-I. Parent’s Witness 1’s Affidavit on IEEs 02/17/2023 3 pages
P-J. [REDACTED] Optometric Evaluation 06/11/2020 7 pages
P-K. OT Evaluation 07/24/2019 8 pages
P-L. School Description Undated 1 page
P-M. Travel Directions to School Undated 1 page
P-N. IEP 10/15/2021 28 pages
P-O. PWN Undated 4 pages
P-P. Documents for Busing Accommodations 09/14/2022 3 pages
P-Q. Parent 2021 Tax Return 03/29/2022 3 pages
P-R. Progress Report 11/__/2022 Fall 9 pages
P-S. Progress Report 03/__/2023 Winter 9 pages
P-T. Emails to CSE Regarding Busing Various 3 pages
P-U. Affiant’s Affidavit 04/06/2023 8 pages
P-V. Parent’s Affidavit 04/10/2023 6 pages
DOE’S EXHIBITS
DOE-1 DPC 09/19/2022 9
DOE-2 IEP 09/30/2021 38
DOE-3 Prior Written Notice and School Location Letter 11/01/2021 7 DOE-4 Withdrawn - DOE-5 Occupational Therapy Evaluation 03/12/2020 9 DOE-6 Physical Therapy Evaluation 03/11/2020 5 DOE-7 Speech-Language Therapy Progress Report 2019-2020 2
IHO’S EXHIBITS
I. Email – IHO’s PHC Summary 01/12/2023 2 pages
II. Order on IEEs 03/02/2023 13 pages
Footnotes
[1] Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.
[2] 20 U.S.C. § 1400 et seq.
[3] 34 C.F.R. § 300 et seq.
[4] Educ. Law Art. 89 § 4404 et seq.
[5] 8 NYCRR § Part 200.
[6] Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005].
[7] 20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007].
[8] 20 U.S.C. § 1415[f][3][E][i].
[9] Rowley, 458 U.S. at 203.
[10] Houston Indep. Sch. Dist., 200 F.3d at 349; Fisher v. Stafford Township Bd. of Educ., 289 Fed. App'x 520, 524-25, 2008 WL 3523992 [3d Cir. Aug. 14, 2008]; Couture v. Bd. of Educ., 535 F.3d 1243 [10th Cir. 2008]; Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022, 1027 n.3 [8th Cir. 2003]
[11] A.P., 370 Fed. App'x at 205; Van Duyn, 502 F.3d at 822; Catalan v. Dist. of Columbia, 478 F. Supp. 2d 73 [D.D.C. 2007].
[12] See Antignano v. Wantagh Union Free Sch. Dist., 2010 WL 55908, at *11 [E.D.N.Y. Jan. 4, 2010].
[13] 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 G. and Dianne G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 [2d Cir. 2006], cert denied, and Bd. of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 WL 2982269 [Oct. 15, 2007].
[14] NYS Educ. Law § 4404(1)(c). The burden was also confirmed by the parties’ representatives at a prior SC (T. P7).
[15] Endrew F. v. Douglas County School District, 137 S. Ct. at 1002 (2017).
[16] Rowley, 458 U.S. at 189, 199; Grim v. Rhinebeck Central School Dist., 346 F.3d 377, 379 [2d Cir. 1998]; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998].
[17] Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130.
[18] Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192.
[19] R.E., 694 F.3d at 186; C.L.K. v. Arlington Sch. Dist., 2013 WL 6818376, at *13 [S.D.N.Y. Dec. 23, 2013].
[21] R.E., 694 F.3d at 186-88.
[22] See R.E., 694 F.3d at 195; E.H. v. New York City Dep't of Educ., 2015 WL 2146092, at *3 [2d Cir. May 8, 2015]; R.B. v. New York City Dep't of Educ., 2015 WL 1244298, at *3 [2d Cir. Mar. 19, 2015] ["declining to entertain the parents' speculation that the 'bricks-and-mortar' institution to which their son was assigned would have been unable to implement his IEP"], quoting T.Y. v. New York City Dep't of Educ., 584 F.3d 412, 419 [2d Cir. 2009]; R.B. v. New York City Dep't of Educ., 589 Fed. App'x 572, 576 [2d Cir. Oct. 29, 2014]). The Second Circuit has explained that when parents have rejected an offered program and unilaterally placed their child prior to implementation of the student's IEP, "[p]arents are entitled to rely on the IEP for a description of the services that will be provided to their child" (P.K. v. New York City Dep't of Educ., 526 Fed. App'x 135, 141 [2d Cir. May 21, 2013]) and that "'[t]he appropriate inquiry is into the nature of the program actually offered in the written plan,' not a retrospective assessment of how that plan would have been executed" (K.L. v. New York City Dep't of Educ., 530 Fed. App'x 81, 87 [2d Cir. July 24, 2013], quoting R.E., 694 F.3d at 187.
[23] F.L. v. New York City Dep't of Educ., 553 Fed. App'x 2, 9 [2d Cir. Jan. 8, 2014], quoting R.E., 694 F.3d at 187 n.3.
[24] R.E., 694 F.3d at 195; E.H., 2015 WL 2146092, at *3.
[25] M.O., 793 F.3d at 244.
[26] See M.E. v. New York City Dep't of Educ., 2018 WL 582601, at *12 [S.D.N.Y. Jan. 26, 2018]; Z.C. v. New York City Dep't of Educ., 222 F. Supp. 3d 326, 338 [S.D.N.Y. 2016]; L.B. v. New York City Dep't of Educ., 2016 WL 5404654, at *25 [S.D.N.Y. Sept. 27, 2016]; G.S. v. New York City Dep't of Educ., 2016 WL 5107039, at *15 [S.D.N.Y. Sept. 19, 2016]; M.T. v. New York City Dep't of Educ., 2016 WL 1267794, at *14 [S.D.N.Y. Mar. 29, 2016].
[27] See K.F. v. New York City Dep't of Educ., 2016 WL 3981370, at *13 [S.D.N.Y. Mar. 31, 2016]; Q.W.H. v. New York City Dep't of Educ., 2016 WL 916422, at *9 [S.D.N.Y. Mar. 7, 2016]; N.K. v. New York City Dep't of Educ., 2016 WL 590234, at *7 [S.D.N.Y. Feb. 11, 2016].
[30] Citing M.T., 2016 WL 1072491 ("Th[e] test of a school's capacity to implement a student's IEP, however, is limited to facts uncovered by a parent prior to rejecting the placement option. It does not permit litigants to establish a substantive violation based on facts discovered for the first time at an IHO hearing." (emphasis in original)); also Scott ex rel. C.S. v. N.Y.C. Dep't of Educ., 6 F. Supp. 3d 424, 445 (S.D.N.Y. 2014) ("The proper inquiry for the Court, therefore, is whether the alleged defects of the placement were reasonably apparent to Plaintiff[s] or the DOE when Plaintiff[s] rejected [the placement].").
[31] Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 [2d. Cir. 2007].
[32] Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d. Cr. 2006].
[33] Gagliardo, 489 F.3d at 115.
[34] Gagliardo, 489 F.3d at 112 (quoting Frank G., 459 F.3d at 364-65).
[35] Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826 [2d Cir., 2014]; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"].
[36] 20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; see S.W. v. New York City Dep't of Educ., 646 F. Supp. 2d 346, 362-64 [S.D.N.Y. 2009]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181, at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 192 Fed. App'x 62, 2006 WL 2335140 [2d Cir. Aug. 9, 2006]; Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-61 [S.D.N.Y. 2005]; see also Voluntown, 226 F.3d at 69 n.9; Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001].
[37] 20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1].
[38] Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004].
[39] Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G. v. Bd. of Educ., 459 F.3d 356, 376 [2d Cir. 2006]; Voluntown, 226 F.3d at 68; Lauren V. v. Colonial Sch. Dist., 2007 WL 3085854, at * 13 [E.D. Pa. Oct. 22, 2007].
[40] Greenland Sch. Dist., 358 F.3d at 160.
[41] Application of a Student with a Disability, Appeal No. 23-052.
[42] Application of a Student with a Disability, Appeal No. 12-036; Application of a Student with a Disability, Appeal No. 12- 004; Application of the Dep't of Educ., Appeal No. 11-130; Application of the Dep't of Educ., Appeal No. 11-106; Application of a Student with a Disability, Appeal No. 11-041.
[43] Exhibit DOE-4 is a duplicate of Exhibit P-C and was withdrawn; Exhibit P-B is a duplicate of Exhibit DOE-1 and was withdrawn.
[44] Although the document is dated 02/09/2023, the affidavit was notarized on 02/17/2023 (Ex. P-I-3).