New York City Department of Education, Impartial Hearing Decision

Case number 589021 NYC 240131

FINDINGS OF FACT AND DECISION

Student’s Name: REDACTED(“Student”)

Date of Birth: REDACTED

School District: REDACTED

Hearing Requested by: Parents “Parent(s)”

Request Date/Date Complaint Filed: June 9, 2022

Actual Record Closed Date: March 24, 2023

Date of Decision: March 28, 2023

Hearing Officer: Harriet Gewirtz

INTRODUCTION AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parent’s Due Process Complaint (“DPC") filed on or about June 9, 2022.

On June 9, 2022 , the parent (the “Parent”) of REDACTED(the “Student”) filed a due process complaint under the Individuals with Disabilities Education Act (the “IDEA”) [20 U.S.C. section 1415(f)] and Section 4404(1) of the New York State Education Law against the New York City Department of Education (the “DOE”). I was appointed as impartial hearing officer (“IHO”) on December 16, 2022.

Lists of the documentary evidence submitted are appended to this Order.

JURISDICTION

The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.

BACKGROUND

REDACTED is a REDACTED -year-old student who is classified as a student with a disability. His classification and eligibility for special education supports and services are not in dispute. The Parents unilaterally placed the Student at REDACTED for the 12 month 2022-2023 school year. The Parents now seek tuition reimbursement for the cost of the REDACTED for the 2022-2023 school year placement, inter alia. The Parents maintain that the DOE failed to offer the Student an appropriate program and placement for the 2022-2023 years, and thus failed to offer him a free appropriate public education (“FAPE”). The Parents further maintain that the REDACTED placement is appropriate and that equitable factors support the tuition reimbursement claim.

The DOE does not assert that it provided the Student with a FAPE, did not present witnesses, nor a documentary evidence package and did not submit a closing brief.

The Parents presented two witnesses, submitted a documentary evidence package, and submitted a closing brief.

FINDINGS OF FACT AND DECISION

The IDEA provides that children with disabilities are entitled to a Free Appropriate Public Education ("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 comprehensive written Individualized Education Program (“IEP”) (34 C.F.R. § 300.13). 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 reasonably calculated to enable the student to receive educational benefits Bd. 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, No 15-827, 2017 WL 1066206, 137 S.Ct. 988, 69 IDELR 174 (U.S. Mar 22, 2017).

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

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).

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 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)).

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 G. and Dianne G. 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 G.,2007 WL 2982269 [Oct. 15, 2007].

The Parents raised multiple challenges to the committee on special education (“CSE”) program and placement recommendations. The DOE did not present any witnesses or evidence in this case. 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.” Endrew F. v. Douglas County School District, 137 S. Ct. at 1002 (2017). There was no explanation, let alone a cogent and responsive explanation, for the CSE’s program and placement recommendations.

The DOE has not, therefore, met its burden of proof in this proceeding. The Parents have therefore met the first of the three Burlington/Carter criteria for tuition reimbursement.

The Parents have the burden of proving that the unilateral placement was appropriate. 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]. However, the private school placement “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements” (Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d. Cr. 2006]. 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.

The standard to apply is whether "[the] unilateral private placement ... provides educational instruction specifically designed to meet the unique needs of a handicapped child" Gagliardo, 489 F.3d at 115):

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).

The DOE did not challenge the Parents’ contention that the REDACTED placement was an appropriate program and placement for the Student. The Parents presented extensive testimony and submitted substantial documentary evidence in support of their position that the REDACTED placement was appropriate. (Parent Exs I-P) The testimony of the Parents’ witnesses, (Exs O and P),(which was uncontroverted) and the Parents’ documentary evidence established that the REDACTED placement was appropriate and has been providing the Student with educational instruction that is specifically designed to meet the Student’s unique special education needs, supported by such services that are necessary to permit her to benefit from instruction.

The Parents have therefore met the second of the three Burlington/Carter criteria for tuition reimbursement.

The determination of whether or not equitable factors support a parent’s claim for tuition reimbursement hinges, in large part, on whether or not the parent cooperated with the CSE. The DOE did not raise any issues that would limit or preclude tuition reimbursement. In fact, it did not oppose tuition reimbursement on equitable grounds. Moreover, the testimony and documentary evidence make clear that the Parents cooperated with the CSE and provided the DOE with appropriate and timely written notice (Ex D).

Based on the foregoing, I find that equitable factors support the Parents’ claim for tuition reimbursement for the 2022-2023 school year. The Parents have therefore met the third of the three Burlington/Carter criteria for tuition reimbursement. Having met all three of the Burlington/Carter criteria, the Parents are entitled to reimbursement for the cost of the Student’s 2022-2023 REDACTED placement.

The cost of the Student’s 2022-2023 program at REDACTED is $24,082.50 for the summer program in 2022 and $121,550 for the ten-month, 2022-2023 school year. Ex. E. An Affidavit from the Private School also documents these amounts, toward which the Parent paid $500, with $145,132.500 remaining due. Ex. D, Ex. E. The Parent placed her taxes into evidence and her testimony provided that it is an accurate reflection of the family income. Ex. H, Ex. P. Equities favor the Parent and warrant direct tuition funding and reimbursement. The DOE did not object to the request. The request that the DOE be directed to reimburse/directly fund the cost of the Student’s 2022-2023 REDACTED placement is therefore granted.

Transportation

Under New York State law, the school district has the burden of proof regarding all issues, other than the appropriateness of a parental placement in a tuition reimbursement case. NY Educ. Law § 4404 (1)(c). As such the normal burden of proof that would belong to the parents, having filed the hearing request does not apply. See Shaffer v. Weast, 546 U.S. 49 (2005). Therefore, the DOE has the burden of proof to demonstrate its position that the child is not entitled to the transportation parents seek. Here the DOE failed to defend any position regarding transportation of file a due process response.

Under the IDEA, a school district must provide a special needs child with supplementary aids and services, including transportation, to afford special needs children an equal opportunity for participation in educational services and activities. 34 C.F.R. § 300.107. The definition of related services under the IDEA includes transportation when it is necessary for a child to benefit from education. 34 C.F.R. § 300.34. (“Related services means transportation and such developmental, corrective, and other supportive services as are required to assist a child with a disability to benefit from special education…”)

Under the New York State Education Department’s interpretation of the right to special education transportation as a related service, a CSE must consider whether the child’s “mobility, behavior, communication, physical, and health needs when determining whether or not a student requires transportation as a related service, and that the IEP must include specific transportation recommendations to address each of the student’s needs, as appropriate.” Application of the XXX District, Appeal No. 12-082, p. 7 (quoting “Special Transportation for Students with Disabilities,” VESID Mem. (Mar. 2005), available at http://www.p12.nysed.gov/specialed/publications/policy/specialtrans.pdf).

The SRO has expanded on the State Education Department’s list and held that the CSE should also consider “the student’s age, ability to follow directions, ability to function without special transportation, the distance to be traveled, the nature of the area, and the availability of private or public assistance.” Appeal No. 12-082, pp. 7-8 (citations omitted). The SRO noted that it is error when the CSE fails to consider a child’s needs beyond his or her ability to ambulate. “[T]here is no indication that any district member of the October 2011 CSE considered the student's needs relating to transportation other than his ability to ambulate, including the route the student would have to take to school.” Appeal No. 12-082, p. 9.

New York State law defines special education, as including transportation.

“Special education” means specially designed instruction which includes special services or programs as delineated in subdivision two of this section, and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability. NY Educ. Law § 4401(1).

Additionally, NY Educ. Law § 4402 (4)(d) provides that the DOE must provide suitable transportation to children who are classified as special needs and who attend private schools for the purposes of receiving special education services. This is a state law requirement separate from the right to transportation as a related service under the IDEA. In Application of a Child with a Disability, Appeal No. 07-073, the SRO determined that the parents of a special needs child were entitled to transportation and transportation reimbursement to a special needs non-public school. There is no exemption from this requirement in New York City.

The IHO has authority to issue a decision on transportation or an interim order, that can be found in 20 U.S.C. § 1415(i)(2)(C)(iii) and 20 U.S.C. § 1439(a)(1).

For the same reason, we reject the District's argument that because §

1412(a)(10)(C)(ii) authorizes "a court or a hearing officer" to award reimbursement for private-school tuition, whereas § 1415(i)(2)(C)(iii) only provides a general grant of remedial authority to "court[s]," the latter section cannot be read to authorize hearing officers to award reimbursement. That argument ignores our decision in Burlington, 471 U.S., at 363, 370, 105 S. Ct.

1996, 85 L. Ed. 2d 385, which interpreted § 1415(i)(2)(C)(iii) to authorize hearing officers as well as courts to award reimbursement notwithstanding the provision's silence with regard to hearing officers. When Congress amended

IDEA without altering the text of § 1415(i)(2)(C)(iii), it implicitly adopted that construction of the statute. See Lorillard v. Pons, 434 U.S. 575, 580-581,

98 S. Ct. 866, 55 L. Ed. 2d 40 (1978). Forest Grove School Dist. v. T.A., 557 U.S. 230, 244, 129 S.Ct. 2484, 2494 fn. 11 (2009) (noting that a hearing officer had the same authority as a court to issue the equitable remedy of tuition reimbursement). In Forest Grove the Supreme Court rejected the argument that hearing officers do not have authority to order relief as appropriate. Id.

Additional authority is found under New York law, which provides for the right to an impartial hearing addressing any matter relating to the identification, evaluation or educational placement of the student or the provision of a free appropriate public education to the student …. NY Educ. Law §4404(1)(a).

Transportation is clearly a matter related to the placement of a student or the provision of a free appropriate public education to the student.

The Appellate Division held that the Commissioner (now impartial hearing officers) had authority to order transportation and reimbursement for costs under New York law and Burlington. State v. Wallkill, 170 A.D.2d 8 (N.Y. App. Div. 3d Dep’t 1991). It is also a matter of judicial economy that an impartial hearing officer be able to address interim issues of transportation rather than parents having to go to state or federal court.

The 2021-2022 IEP provides that the Student is entitled to special education transportation and the Department is providing the Student with a special education bus to the Private School. Ex. B, Ex. P. The Student’s physician, REDACTED, recommended limited transit of 60 minutes or less to or from school, climate control, and few students on the bus in a letter dated September 30, 2022. Ex. J. This letter postdates the CSE meeting, limited time travel may not have been an issue on June 10, 2022, given that the Student had previously attended a local public program. Therefore, I will order the CSE to reconvene within 20 days of this order and prepare an IEP that takes into consideration the recommendations for transportation for the Student.

ORDER

IT IS HEREBY ORDERED that the New York City Department of Education is directed to reimburse the Parent $500.00 and directly fund REDACTED $145,132.500, the cost of the Student’s 2022-2023 program at REDACTED, to be paid within 45 days of this order; and it is further

ORDERED, The New York City Department of Education is to have the CSE conduct/consider all appropriate evaluations and reconvene within 20 days of receipt of said evaluations; they must consider all of the evaluations which the Student has had, and consider all the available information, and to prepare a new individualized education program that comprehensively describes the Student and includes appropriate transportation services and goals.

Dated: March 28, 2023

Harriet Gewirtz

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public-School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for 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

Appearances

For the Student:

REDACTED., Attorney

For the Department of Education:

NONE

APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

A. Impartial Hearing Request 10/3/2022 7 pages

B. IEP (2021-2022) 5/11/2021 17 pages

C. CSE Meeting Notice 6/2/2022 3 pages

D. Parent Correspondence to REDACTED 6/21/2022

E. School Contract 7/7/2022 4 pages

F. Proofs of Cost (Affidavit) 9/14/2022 1 page

G. Credit Card Receipt 7/13/2022 2 pages

H. Taxes 2021 2 pages

I. Sum. 2022 Class Schedule 1 page

J. Letter from Pediatrician REDACTED and Form (Transportation Documents) 3 9/30/2022

K. (December 2022) Progress Report Undated 1 page

L. Class Schedule 2022-2023 1 page

10. M 8/2/2022 Functional behavior Assessment and Behavior Intervention Plan Tuition Affidavit N Aug 2022 45 Day Reports 10 pages DOE

O. Affidavit of REDACTED 2/27/2023 6 pages

P. Affidavit of REDACTED 2/27/2023 2 pages

DOE EXHIBITS