New York City Department of Education, Impartial Hearing Decision

Case Number: 588627 – NYC: 239774

FINDINGS OF FACT AND DECISION

Student’s Name: REDACTED (“Student”)

Date of Birth: REDACTED

District: New York City Department of Education (“DOE” or the “District”)

Hearing Requested by: REDACTED, Esq., of the REDACTED, on behalf of REDACTED and REDACTED (the “Parents”) and the Student

Record Close Date: April 28, 2023

Hearing Officer: Randy Glasser, Esq.

On September 28, 2022, REDACTED, Esq., of the REDACTED, filed a due process complaint (“DPC”) on behalf of the Parents and their child, the Student, regarding his special education program and services for the 2022/2023 school year, pursuant to the Individuals with Disabilities Education Act (the “IDEA”) (Parent Ex. “A”). This Hearing Officer was appointed as the Impartial Hearing Officer (“IHO”) on October 28, 2022, (pursuant to 200.5(j)(3)(ii)(a) of the Commissioner’s Regulations), because this DPC constituted a subsequent due process complaint being filed while a previous due process complaint was pending for the same student involving the same parties. A prehearing conference (“PHC”) was held on November 29, 2022, and status conferences on January 5, 2023, January 19, 2023, February 1, 2023, and March 2, 2023. The Hearing went forward on March 30, 2023 and April 4, 2023, at which District Representative, REDACTED, Esq., appeared for the District, and REDACTED, Esq., of the REDACTED, appeared for the Parents and Student.

Even though the District did not put on a direct case, it submitted District Exhibits “1” and “2” into evidence. The Parents put on a direct case and submitted Parent Exhibits “A” through “K” into evidence, which were comprised in part of two (2) affidavits, one (1) for the Parent at Parent Ex. “J” and the other for REDACTED, CSE Liaison at the REDACTED (“CSE Liaison”) (see Parent Ex. “J” and “K”, respectively). The compliance date for this matter has been extended to May 19, 2023 (IHO Ex. “I”).

BACKGROUND AND POSITIONS OF THE PARTIES

The Student is REDACTED (REDACTED) years old, classified as a student with a Learning Disability, and diagnosed with a Specific Learning Disorder, with Impairment in Reading (Dyslexia), Specific Learning Disorder, With Impairment in Written Expression, Language Disorder, and Attention-Deficit/Hyperactivity Disorder (ADHD), predominantly inattentive presentation (DOE Ex. “2” at p.2, Parent Ex. “D” at p. 9).

The Student’s Individualized Education Program (“IEP”) dated April 27, 2022, for the 2022/2023 school year recommends the following ten (10) month special education program and services: Special 12:1 (12 students and 1 teacher) Class for Math, ELA, Social Studies and Science, with each class five (5) times per week, one (1) period^[1] per session, occupational therapy in a group of an unspecified size, three (3) times per week, thirty (30) minutes per session and speech language therapy in a group of an unspecified size, two (2) times per week, thirty (30) minutes per session (DOE Ex. “2”).

The Parents unilaterally placed the Student at REDACTED (the “School”) for the 2022/2023 school year, for which they are now seeking the District’s direct funding for the Student’s tuition, and door-to-door, suitable transportation from the Student’s home to the School ^[2] (Parent Ex. “A”; Tr. 56, 102). The DPC also states the Parents are seeking attorneys’ fees. However, at the prehearing conference, Parents’ counsel agreed to the fact that this IHO does not have the authority to order attorneys’ fees (Tr. 101-102).

The Student’s eligibility and classification are not at issue in this case.

FINDINGS OF FACT AND DECISION

A. Introduction: The IDEA provides that children with disabilities are entitled to a FAPE (20 U.S.C. § 1400 (d)(1)(A)). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensively written IEP (Id., 20 U.S.C. §1414(d); 34 C.F.R. § 300.17). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through, the IDEA's procedures, and is (c) reasonably calculated to enable the student to receive educational benefits. Board of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas County Sch. Dist., RE-1, 137 S. Ct. 988 (2017).

Decisions of impartial hearing officers must be on substantive grounds based on a determination of whether the student received a FAPE (8 NYCRR § 200.5(j)(4)(i)), except:

In matters alleging a procedural violation, an impartial hearing officer may find that a student did not receive a free appropriate public education only if the procedural inadequacies impeded the student’s right to a free appropriate public education, significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of a free appropriate public education to the parent’s child, or caused a deprivation of educational benefits. Nothing in this paragraph shall be construed to preclude an impartial hearing officer from ordering a school district to comply with procedural requirements under this Part and Part 201 of this Title 8 NYCRR § 200.5(j)(4)(ii). Id. 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 the parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement (NYS Educ. Law § 4404(1)(c)).

The IDEA empowers a hearing officer to grant the relief he/she deems appropriate. 34 CFR §300.516(c)(3). One such remedy is reimbursement of tuition and related expenses. Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); Burlington Sch. Comm. v. Mass. Dep’t. of Educ., 471 U.S. 359, (1985). Notably, the mere fact that the state educational agency and/or local educational agency (“LEA”) has not approved the private school placement does not bar the parents from reimbursement. Florence County Sch. Dist. Four v. Carter, supra.

The District conceded that they failed to provide the Student with a FAPE and did not put on a direct case (Tr. 53-54).

The Parents presented two (2) witnesses on their direct case; [REDACTED] (the “Parent”), and the CSE Liaison.

In addition to the testimony contained in the Parent’s Affidavit at Parent Ex. “J”, she testified regarding the fact that she and her husband executed the contract with the School on February 11, 2022 in order to hold a place for the Student if the District did not provide an appropriate placement (Tr. 61, 62, 63-64), that the Student has attended the School for the past two (2) school years (Tr. 64), her opinion that the Student’s placement was decided before the IEP Team meeting held on April 27, 2022 (Tr. 67), paragraph 11 of her Affidavit (Tr. 67-68), that she still has not received the IEP from the aforementioned IEP Team meeting held on April 27, 2022 (Tr. 67), that she still has not received the school location letter for the 2022/2023 school year (Tr. 69-70) and that the 1040 at Parent Ex. “B” is an accurate statement of her income for 2020 (Tr. 70).

In addition to the testimony contained in the CSE Liaison’s Affidavit at Parent Ex. “”K”, she testified regarding her certifications (Tr. 85-86), that she worked at the Department of Education for two (2) and one-half (1/2) years (Tr. 86), that she started at the School in January of 2022 where she has served continuously as of the date of the hearing as the CSE Liaison (Tr. 90-91), and about when she observed the Student (Tr. 86, 98), the Student’s schedule (Tr. 86-87), the fact that all classes at the School have a ratio of 12:1+1 (12 students, one teacher and one assistant teacher) (Tr. 88) the related services the Student receives (Tr. 89), the Student’s teachers (Tr. 89), the fact that all his teachers are certified in special education or seeking such certification from the State of New York (Tr. 89-90, 91), the basis of the CSE Liaison’s knowledge of the Student’s progress (Tr. 90), the fact that as part of the admissions process, the School considered the neuropsychological evaluation of the Student at Parent Ex. “D” and the academic assessments they administered during the admissions process (Parent Ex. “K” at ¶12, Tr. 92, 94), and the Student’s performance on the Fountas and Pinnell at the beginning of the year versus mid-year (Tr. 97). B. Tuition Reimbursement: A board of education may be required to pay for educational services obtained for a child by the child's parent, (1) if the services offered by the board of education were inadequate or inappropriate, (2) the services selected by the parent were appropriate, and (3) equitable considerations support the parent's claim (Burlington Sch. Comm v. Mass. Dep’t. of Educ., supra; Florence County Sch. Dist. Four et al. v. Carter, supra; see also Frank G. and Dianne G. v. Board of Educ. of Hyde Park, 459 F.3d 356 (2d Cir. 2006), cert denied, Board of Educ. of Hyde Park Cent. Sch. Dist. v. Frank G., 2007 WL 2982269 (2007). Accordingly, the above-stated three (3) prong analysis (the “Burlington/Carter Criteria”) is applied to determine whether the board of education is required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents. Id.

The inquiry made pursuant to the first prong, may go beyond the appropriateness of the student’s IEP and/or placement and encompass other FAPE claims (see 20 USC §1412(a)(10)(C)(ii); 34 C.F.R. §300.148(a) and (c); Forest Grove v. T.A., 557 U.S. 230 (2009); P.C. Oceanside Union Free Sch. Dist., 818 F. Supp. 2d 516 (E.D.N.Y. 2011); Mr. N.C. v. Bedford Cent. Sch. Dist., 300 F. App’x 11 (2d Cir. 2009). To determine whether the school district made FAPE available to the student in a timely matter, Rowley’s two-part test, as modified by Endrew F. v. Douglas County Sch. Dist., RE-1, supra, for appropriateness should be applied. Specifically, the hearing officer must determine whether the school district complied with the procedural requirements of the IDEA and whether the IEP is reasonably calculated to enable the child to make appropriate progress in light of her circumstances. Id. “An appropriate educational program therefore begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services.” (See Application of the Dept. of Educ., Appeal No. 07-018 (2007)). Thus, the annual goals and short-term objectives should be consistent with, and relate to, the identified needs and abilities of the student. See Application of a Student with a Disability, Appeal No. 14-078 (2015) (citing 20 U.S.C. § 1414(d)(1)(A)(i)(II); 34 CFR § 300.320(a)(2)(i); 8 NYCRR § 200.4(d)(2)(iii)). While the Second Circuit has emphasized that school districts must comply with a checklist of procedures for developing a student’s IEP, the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA. See A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 (2d Cir. 2009). Under the IDEA, if procedural violations are 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 to the student (20 U.S.C. §1415(f)(d)(E)(ii); 34 C.F.R. §300.513(a)(2); 8 NYCRR §200.5(j)(4)(ii)).

As aforementioned, the DOE has the statutory burden of persuasion and production in this case, to show that the program and services offered by the DOE pursuant to the Student’s IEP was adequate or appropriate in order to satisfy Prong I of the Burlington/Carter Criteria. In addition to conceding FAPE, the District failed to proffer sufficient documentary or any testimonial evidence or otherwise prove that it had offered the Student a FAPE for the 2022/2023 school year, e.g., whether it offered a program that “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas County Sch. Dist., RE-1, 137 S. Ct. 988 (2017).

Thus, the District has failed to satisfy the first prong of the Burlington/Carter criteria, thus causing the burden to shift to the Parents to prove that the unilateral placement was appropriate or proper. Burlington Sch. Comm., 471 U.S. at 369 and 370; see also Florence County Sch. Dist. Four et al. v. Carter, 510 U.S. at 15. In order to meet this burden, the 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” (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d. Cir. 2007)). In this regard, the court in Gagliardo explained:

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. Id. at 112 (quoting, Frank G., 459 F.3d at 364-65). However, the private school placement “need not meet the IDEA’s definition of a free and appropriate public education” or “state education standards or requirements” (Frank G. v. Board of Educ., at 364). Moreover, the private placement need not provide certified special education teachers or an IEP. Parental placements are not subject to the same mainstreaming requirements as a school district placement. 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. Id.

In the instant case, the testimony and documentary evidence overwhelmingly support the Parents’ claim that the Student’s placement at the School provides him with educational instruction that is specifically designed to meet his unique special education needs, supported by such services that are necessary to permit him to benefit from instruction and established that the Student has, in fact, made meaningful progress at the School. In this regard the School’s CSE Liaison testified regarding the School’s admission process and that the Student’s profile is consistent with that of a typical student at the School, his needs match the services the School is able to provide and the neuropsychological evaluation recommended a school setting consistent with the School (Parent Ex. “K” at ¶13), the progress the Student has made in all areas of instruction (Id. at ¶15), e.g., reading (Id. at ¶16), writing (Id. at ¶17), mathematics (Id. at ¶18), Social Studies (Id. at ¶19), and science (Id. at 20), and why the School is an appropriate placement for him (Id. at ¶21; see also Mid-Year Report Card at Parent Ex. “I”). The Parent also testified that the Student has made “substantial progress” at the School since attending their program (Parent Ex. “J” at ¶16).

The determination of whether, or not equitable factors support a parent’s claim for tuition reimbursement hinges, in large part, on whether, the parent cooperated with the CSE. In the instant matter, the DOE failed to provide any evidence and/or raise any equitable factors, which would preclude or limit tuition reimbursement for the Parent’s unilateral placement of the Student at the School for the 2022/2023 school year. Moreover, the Parent testified that she has always cooperated with the DOE in connection with the Student’s education e.g., attended all meeting and provided staff with all relevant information e.g., the neuropsychological evaluation (Parent Ex. “J” at ¶17, Tr. 67). In addition, the Parents provided the requisite ten-day notice to the District of their intention to place the Student at the School for the 2022/2023 school year (Parent Ex. “F” and “G”).

Based on the foregoing, this IHO finds that the Parents have satisfied the third prong of the Burlington/Carter Criteria for tuition reimbursement. Having met all three (3) of the Burlington/Carter Criteria, the Parents are entitled to reimbursement for the cost of the Student’s tuition at the School for the 2022/2023 school year. The record in this case establishes that the Student’s total annual tuition at the School for the 2022/2023 school year is SIXTY-SEVEN THOUSAND FIVE HUNDRED DOLLARS ($67,500.00), of which the Parents have paid ONE THOUSAND NINE HUNDRED AND SIXTY-FOUR DOLLARS AND TWENTY-EIGHT CENTS ($1,964.28), leaving a balance of SIXTY-FIVE THOUSAND FIVE HUNDRED AND THIRTY-FIVE DOLLARS AND SEVENTY-TWO CENTS ($65,535.72) (see: Parent Ex. “E”, “H”).

The remaining issue is whether this IHO can order direct payment to the School of the Student’s tuition for the 2022/2023 school year. As more fully explained below, the Parents have sustained this burden.

The Second Circuit Court of Appeals has held that a direct payment remedy is an appropriate form of relief in some circumstances, and that "[i]ndeed, where the equities call for it, direct payment fits comfortably within the Burlington–Carter framework" (E.M. v. New York City Dep't of Educ., 758 F.3d 442, 453 (2d Cir. 2014); see also Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 430 (S.D.N.Y. 2011) (finding it appropriate to order a school district to make retroactive tuition payment directly to a private school where equitable considerations favor an award of the costs of private school tuition but the parents, although legally obligated to make tuition payments, have not done so due to a lack of financial resources)).

The Parents’ Contract with the School provides in relevant part:

In the event that the Parent does not qualify for prospective payment of tuition or Parent’s claim for tuition is denied by an impartial hearing officer, Parent, and [the School] will terminate this enrollment contract or execute a new payment schedule. If enrollment is terminated, Parent(s) remains responsible for tuition costs incurred prior to termination of enrollment. The amount due will be calculated by dividing the number of months the student has been enrolled up to the termination date by 10 (months in the academic year) to determine a percentage. That percentage will then be multiplied by the full amount of private tuition to arrive at the pro rata amount of tuition payable. (Parent Ex. “E”) (Emphasis added). Like in the E.M. case, the Parents are legally obligated to pay the School for the Student’s tuition for the 2022/2023 school year in the event that ultimately the School is not paid, for the time period the Student has attended the School (Id.). Thus, the Parents incurred a financial obligation for the Student’s tuition, which supports an award of reimbursement relief. Moreover, the Parents have provided testimony and evidence demonstrating that they do not have the financial resources to pay for such services. In this regard, the Parent testified that they are unable to pay the Student’s tuition at the School based upon their yearly income and submitted each Parent’s 1040 showing their total gross income for 2020 was approximately $115,000, thus confirming that they are unable to pay for the Student’s tuition at the School (see: infra; Parent Ex. “B” and “C”). Accordingly, the Parents are entitled to an order direct payment to the School for the Student’s tuition for the 2022/2023 school year. G. Transportation: As aforementioned the Parents request that a determination, be made by this IHO that the District is obligated to provide transportation to the School (Parent Ex. “A”). As explained by the SRO in App. No. 18-115 (2018), citing relevant case law: . . . under a more traditional application of the Burlington/Carter framework for tuition reimbursement, an order for tuition reimbursement may very likely have included the costs of the transportation sought by the parent (see Union Sch. Dist. v. Smith, 15 F.3d 1519, 1528 [9th Cir 1994) (finding "that the language and spirit of the IDEA encompass reimbursement for reasonable transportation and lodging expenses . . . as related services"); see also N.E. Cent. Sch. Dist. v. Sobol, 79 N.Y.2d 598, 608 (1992) [finding that, since a FAPE included related services such as transportation, an order of reimbursement for transportation was an appropriate remedy for a denial of a FAPE)). Id.

Accordingly, this IHO’s decision that the Parents are entitled to tuition reimbursement, encompasses the District’s provision of reasonable transportation for the Student to the School for the 2022/2023 school year. In this regard, the Parents’ attorney stated that although the District is providing transportation for the Student to the School for the 2022/2023 school year, they are requesting an order that the District is required to provide such transportation (Tr. 102).

ORDER

IT IS HEREBY ORDERED that no later than thirty (30) days after this Decision, the DOE shall reimburse the Parents for their payment of a portion of the Student’s tuition at the School for the 2022/2023 school year totaling ONE THOUSAND NINE HUNDRED AND SIXTY-FOUR DOLLARS AND TWENTY-EIGHT CENTS ($1,964.28) upon the Parents presenting to the District their credit card statements, and/or documents, evidencing such payment to the School; and IT IS FURTHER ORDERED that no later than thirty (30) days after the date of this decision, the District shall directly pay to the School the remaining portion of the Student’s total tuition for the 2022/2023 school year totaling SIXTY-FIVE THOUSAND FIVE HUNDRED AND THIRTY-FIVE DOLLARS AND SEVENTY-TWO CENTS ($65,535.72); and

IT IS FURTHER ORDERED that the District is responsible to provide suitable roundtrip transportation for the Student from his home to the School for the 2022/2023 school year.

April 28, 2023

Randy Glasser

Randy Glasser, Esq.

Impartial Hearing Officer

NAMES AND TITLES OF APPEARANCES

FOR HEARING HELD ON MARCH 30, 2023

DOE

REDACTED, District Representative

PARENTS

REDACTED, Esq., REDACTED

Parent

FOR HEARING HELD ON APRIL 4, 2023

DOE

REDACTED, District Representative

PARENTS

REDACTED, Esq., REDACTED

CSE Liaison

DOCUMENTS ENTERED INTO THE RECORD

IHO EXHIBITS

I. Order of Extension, 4/4/2023 1 page IHO

II. Emails, 4/4/2023 2 pages IHO

DOE EXHIBITS

1. Due Process Complaint, 9/28/2022, 7 pages DOE

2. IEP, 4/27/2022, 18 pages DOE

PARENT EXHIBITS

B. A. Intentionally left blank. 1040, 2020 2 pages

C. 1040, 2020 2 pages

D. Neuropsychological Evaluation, 3/11/2023, 15 pages

E. The School’s Enrollment Contract, 3/11/2022, 7 pages

F. Ten Day Notice, 8/22/2022, 1 page

G. Ten Day Notice Confirmation, 8/22/2022, 1 page

H. The School’s Tuition Affidavit, 2/6/2023, 11 pages

I. The School’s Mid-Year Report, 1/2023, 11 pages 3 pages

J. Affidavit, 3/23/2023, ^[3] pages

K. Affidavit, 4/3/2023, 4 pages

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.

Footnotes

[1] The length of the period is unspecified e.g., forty-five minutes.

[2] The Parent’s attorney stated at the hearing that they are withdrawing the request for “reimbursement for the cost of breakfast and lunch during school days” (Tr. 104).

[3] Parent Ex. “I” was admitted into evidence subsequent to the hearing, but before the record was closed pursuant to emails with the Parties (see: IHO Ex. “II”)