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CASE NUMBER: 589547 - NYC: 240576
FINDINGS OF FACT AND DECISION
Student’s Name [1]: REDACTED (“Student”)
Date of Birth: REDACTED
School District: REDACTED
Hearing Requested by: REDACTED (“Parent(s)”)
Request Date/Date Complaint Filed: 10/17/2022
Date(s) of Hearing: 03/01/2023
Actual Record Closed Date: 3/30/2023
Date of Decision: 3/31/2023
Hearing Officer: Teril Holston, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON 3/31/2023
For the Student:
REDACTED, Esq.
REDACTED
REDACTED
For the Department of Education:
REDACTED, Esq.
INTRODUCTION
This matter comes before the undersigned Hearing Officer at the request of Petitioners, the parents of the student, a REDACTED school student classified as a student with a disability under the Individuals with Disabilities Education Act (“IDEA”); New York State Education Law; and the New York State regulations.
On October 17, 2022, Petitioners filed a Due Process Compliant (“Complaint” or “DPC”) against the New York City Department of Education (“NYC DOE” or “DOE” or “District”) alleging that the District failed to provide the student with a Free and Appropriate Public Education (“FAPE”) for the 2022-2023 school year, in that the District developed an IEP program that was not reasonably calculated to confer an educational benefit (P-A) [2]. The Petitioner is seeking tuition reimbursement/ direct payment for their unilateral placement of the student at Private School, a private program not approved by the Commissioner of Education for the education of students with disabilities for the current school year, and translation of educational documents into Spanish (Id.). Furthermore, the parent alleges that the equities support their claim for tuition reimbursement for the school year at issue (Id.).
In light of the foregoing and as more fully discussed below, I find that a) the DOE failed to meet its burden that it offered the student FAPE for the school year at issue, b) the Private School offers the student with specially designed instruction sufficient to meet student’s needs, c) the equities support the Parent, and d) the parent is not entitled to prospective relief of translated documents
PROCEDURAL HISTORY
On January 11, 2023, the undersigned was appointed to conduct an impartial hearing.[3] The parties then held a status conference on January 26, 2023.
On March 1, 2023, the virtual impartial hearing on the merits of the DPC commenced and concluded. It was a closed hearing.
At the hearing, the District’s representative presented documents (Ex. 1- 2) but did not call any witnesses. The documents were admitted into evidence without objection. The District made a brief opening statement, arguing that although the District was not presenting witness testimony, the parent retained the burden to demonstrate that the unilateral placement was appropriate because it did not provide an educational benefit to the student.
The Parent, through their representative, submitted to documents (Ex. P-A though P-N), [4] including the affidavit testimony of the parent and Private School Director, in support of the Parent’s case. All of the documents were admitted into evidence without objection from the District. The parent made an opening and closing statement detailing the District’s failures and the educational benefits conferred to the student at the Private School.
The record closed on March 30, 2023.
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.
FINDINGS OF FACT
After a full review of the record generated at hearing, I make the following findings of fact and determinations 5:
The student was a REDACTED classified by the CSE as a student with Autism residing with his parent (P-S). The student was also diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”) (P-M).
The CSE convened in September 2021, with bilingual school representatives, and recommended the student be placed in an 8:1+1 special class and receive individual OT 4x30, PT 2x30, SLT 3x30, and SLT group of 2 1x30 on a 12 month basis (DOE-1). The CSE further recommended a fulltime Toileting paraprofessional and specialized transportation (id.).
The student began attending the private school during the 2021-2022 school year funded by the District after an impartial hearing officer determined that the September 2021 IEP inappropriate for the student (P-D). Following the determination in April 2024, parent alerted the District that she had not received any update from the District regarding the upcoming 2022-2023 extended school year (id.). Further, the parent indicated her continued disagreement with the District’s recommendations and her intent to re-enroll the student at Private school for the 2022-2023 extended school year (Id.). The District failed to reply to the parent’s notice in a timely fashion, responding in October 2022 (P-M).
The CSE reconvened in October 2022, recommending a 6:1+1 specialized class in a District 75 School, Individual and Group Counseling 1x30, OT 4x30, PT 2x30, Individual Speech Language Therapy 3x30, Speech Language Therapy Group of 2 1x30, Parent Counseling and Training 5 x year, and a fulltime health paraprofessional (DOE-2).
The student has been attending the Private School since the 2021-2022 school year. The Private School is a small, specialized private school serving students diagnoses with Autism Spectrum Disorders, aged 7 -21 (P-F). Specifically, the school features a 2:1 and 1:1 ratio of instructors to students and creates individualized programs for each students based on their needs (Id.). The Private school utilizes elements of DIR Floortime model and ABA methodology throughout the school day (P-N). The student was placed in a 6:1:2 classroom with 5 other students, 1 teacher and two classroom assistants, and receives OT and speech language therapy consistent with the frequency recommended in the District’s IEP (P-N). The student has made substantial progress in Private School (P-H; P-I; P-J; P-M; PN).
The parent signed an enrollment contract with Private School for the 2022-2023 academic school year on August 23, 2022 at the cost of $112,000, all of which the parent cannot afford (P-G; P-K; P-M).
CONCLUSIONS OF LAW
The Individuals with Disability Education Act (“IDEA”) establishes that students with disabilities are entitled to a free and appropriate education (“FAPE”).[6] A “free appropriate public education consists of educational instruction that is designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction.”[7] In order to demonstrate that a FAPE is being provided, the school district must show “that it complied with the procedural requirements set forth in the IDEA, and that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits.”[8] The student's recommended program must also be provided in the least restrictive environment with non-disabled peers. [9]
The parent seeks tuition reimbursement for the unilateral placement of the student in Private School for the 2022-2023 school year and the cost of related services. As set forth in Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); Sch. Comm. Of Burlington v. Dep’t of Educ., 471 U.S. 359 (1985) it is well established that a District may be required to reimburse parents for tuition payment to a private school if the services offered by the District were inadequate or inappropriate, the services selected by the parents were appropriate under the IDEA, and equitable considerations support the parent’s claim for reimbursement. Thus, consideration of such a claim has been expressed by a three-prong test: (1) was student denied FAPE; (2) the appropriateness of the Parent’s unilateral placement; and (3) a balancing of the equities.
The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE [10]. A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction."[11] “To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”[12] Further, “an IEP is not a form document” and it should be constructed after carefully evaluating the student. [13]
An appropriate program begins with an IEP which accurately reflects the results of the 1) student’s present levels of performance; 2) provides for the use of appropriate special education services to address the child's special education needs; 3) establishes annual goals which are related to the child's educational deficits; 4) identifies transitions services; 5) provides a start and end date to the recommended program and services; and 6) criteria and evaluation procedures for the measurement of goals. [14]
Special education services must be provided by the district in conformity with the student's IEP. [15] A denial of a FAPE occurs if the district deviates from substantial or significant provisions of the student's IEP in a material way and thereby precludes the student from the opportunity to receive educational benefits. [16]
However, school districts are not required to "maximize" the potential of students with disabilities [17], 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'" [18]. The IEP must be "reasonably calculated to provide some 'meaningful' benefit" [19].
The burden of persuasion and proof is by the preponderance of the evidence standard, which requires a finding that the existence of a fact is more probable than not. When the evidence is evenly balanced, the party with the burden loses. The burden of proof at an impartial hearing is on the district, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement [20]. Accordingly, the burden of production and persuasion is on the District for the first and third prongs and on the Parent for the second prong.
ANALYSIS
A. Prong I: FAPE
It is asserted in the DPC that the DOE failed to provide the student with a FAPE for the 2022-2023 school year for a number of reasons. As to Prong I of the Burlington/Carter standard, the DOE failed to meet its burden. While the District submitted the updated October 2022 IEP created well into the school year (DOE-2) and the September 2021 IEP (DOE-4) into the record, a review of same offers no explanation as to how the CSE made its recommendation, how the IEP appropriately describes the student, or whether the IEP is meaningfully calculated to confer educational benefit. In short, the District declined to “offer a cogent and responsive explanation for their decisions” in creating that IEP, and it is “through the IEP that “[t]he ‘free appropriate public education’ required by the Act is tailored to the unique needs of” a particular child”.[21] Further, the District failed to provide any defense of the program recommended for the student. Therefore, the undersigned is constrained to find that the District failed to offer the student a FAPE for the 2022-2023 school year. Moreover, a review of the record herein establishes that the weight of the evidence supports the conclusion that the DOE failed to offer the Student an educational program reasonably calculated to offer FAPE for school years at issue.
B. Unilateral Placement
In this case, as the District did not offer the student a FAPE for the school years issue, the next issue to determine is whether the Parent’s unilateral placement of the student at Private School was appropriate. The Parent argues that the Private School is an appropriate unilateral placement for the student as it provides instruction and services that are specifically designed to meet the student’s unique needs and that it enables the student to make meaningful progress there. For the reasons below, the Parent’s unilateral placement was appropriate.
Parents need not show that the placement provides every special service necessary to maximize the student's potential.[22] When determining whether the parents' unilateral placement is appropriate, that placement must be “reasonably calculated to enable the child to receive educational benefits.”[23] A private placement is only appropriate if it provides education instruction specially designed to meet the unique needs of a student. [24]
A private school placement must be “proper under the Act” [25], i.e., the private school must provide an educational program which meets the student's special education needs.[26] A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement.[27] The private school need not employ certified special education teachers or have its own IEP for the student.[28] The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement:
“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.” 29 Moreover, where the failed to provide the student with a FAPE, the District is precluded from arguing that the testing, evaluations, or assessments introduced by the Parent’s and utilized by the unilateral placement are not sufficiently comprehensive evaluations of the student’s functioning levels and needs, as it is the District that retains the requirement to comprehensively evaluate the student. 30 a. Student Needs In this case, the Parent submitted progress reports composed by the Private School professionals, as well as the affidavit testimony of the Private School Director and Principal and parent, detailing the student’s needs (See Generally, P-H; P-I; P-J, P-M; P-N). b. Program The Private School is a private, specialized education program utilizing small class sizes and intensive multi-disciplinary instruction to students with Autism. The Private School’s curriculum is based on each student’s strengths and weakness, goals geared toward improving functioning skills appropriate to their cognitive, developmental, and social levels. The Private School offers its students a wide variety of related therapy services, including occupational therapy and speech therapy (See Generally P-F; P-H; P-J; P-M; P-N; Transcript). The Private School curriculum further allows students to receive 1:1 instruction and support throughout the day (id). c. Progress With respect to the student’s progress at Private School, a finding of progress is not required for a determination that a student's unilateral placement is adequate, but it is a relevant factor to be considered.[31] Here the parent detailed the progress that she has seen in the student since attending the 29 Gagliardi, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65. 30 see 34 CFR 300.305[c]; 8 NYCRR 200.4[b][5][iii]; A.D. v. Bd. of Educ., 690 F. Supp. 2d 193, 208 [S.D.N.Y. 2010] [finding that a unilateral placement was appropriate even where the private school reports were alleged by the district to be incomplete or inaccurate and finding that the fault for such inaccuracy or incomplete assessment of the student's needs lies with the district]; see also Application of the Dep't of Educ., Appeal No. 21-194; Application of the Dep't of Educ., Appeal No. 20-131; Application of the Dep't of Educ., Appeal No. 18-125; Application of a Student with a Disability, Appeal No. 180-049; Application of a Student with a Disability, Appeal No. 15-076; Application of a Student Suspected of Having a Disability, Appeal No. 15-038; 17 Application of a Student with a Disability, Appeal No. 14-033; Application of a Student with a Disability, Appeal No. 14-028; Application of a Student Suspected of Having a Disability, Appeal No. 14-003; Application of the Dep't of Educ., Appeal No. 13-198; Application of the Dep't of Educ., Appeal No. 13-072; Application of a Student with a Disability, Appeal No. 12-027 Private School (P-M). For example, the student can now identify letters and letter sounds, the student can count to 10 where he struggled to do so at the beginning of the school year (P-M). Additionally, the student’s maladaptive behaviors have significantly deceased (Id.). The student’s reports from her teachers further demonstrate the progress she made towards reaching grade level in several subjects (PH; P-I; P-J; P-N).
Based on all of the above, the parent has met the burden that the Private School is an appropriate placement for the student for the 2022-2023 school year as required.
The weight of the evidence demonstrates that the student’s individual special education needs were addressed by the private school and that the instruction offered was "reasonably calculated to enable the child to receive educational benefits."[32] Of note, the District offered no persuasive arguments concerning the appropriateness of Parent’s unilateral placement, nor challenged the equities in this action. Further, the District had the opportunity to cross-examine the Parent’s witnesses and did not object to any evidence entered into the record. Under these circumstances, I find that the Parent’s witnesses and documentary evidence are credible. C. Equitable Considerations Equitable considerations are relevant in determining relief “because the authority to grant reimbursement [under the IDEA] is discretionary.” [33] “With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise 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 (20 U.S.C. § 1412 [a][10][C][iii]; 34 CFR 300.148[d]; E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school]; C.L., 744 F.3d at 840 [noting that "[i]important to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA"]). Reimbursement may also be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to their removal of the student from public school, or by written notice 10 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."[34] 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."[35] Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision.[36] Parents of students enrolled in private school are not exempted from 10-day notice requirements. [37] The Second Circuit has recently reiterated that "[t]he ten-day notice requirement gives school districts an opportunity to discuss with parents their objections to the IEP and to offer changes to the IEP designed to address those objections—all before the parents enroll their child in a private school and file a due process complaint" and that "if parents unreasonably reject the school district's proposed changes to the IEP, or are otherwise uncooperative, courts and hearing officers are fully empowered to deny them reimbursement" [38] However, the hearing officer must excuse the failure to provide timely notice if, in her discretion, she determines that the reason for the lack of timely notice is that the school district prevented the parents from providing the notice, the parents had not received the procedural safeguards notice advising of the requirement to provide notice, or compliance with the notice requirement would likely result in physical harm to the student. [39] In the instant case, the parent provided the necessary Ten-Days’ Notice of their concerns with the District’s offer of a FAPE for the student for the 2022-2023 school year on June 17, 2022 (P-D). Therein, the parent detailed their specific concerns with the recommendations and provided notice of their intention to unilaterally place the student (Id.). There is nothing in the hearing record to demonstrate that the District responded to the parents before October 2022.
By way of relief, Parent seeks direct funding to the Private School. The record establishes that Parent incurred an obligation to pay the Private School (P-G; P-K). Direct tuition funding is relief encompassed by the equitable remedial powers inherent in IDEA. See e.g. Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 406 (S.D.N.Y. 2011) (parents may seek direct funding in the instance in which, “due to a lack of financial resources, [parents of a student with a disability] have not made tuition payments but are legally obligated to do so”). I find that the unilateral tuition costs are extensive and exceeds the parent’s ability to fund and await reimbursement, and the Parent filed a DPC. Equity demands that the DOE fund Student’s Private School tuition to the extent that the parent was unable to do so in this instance.
In balancing the equities, I find in favor of the Parent. To the extent possible, the Parent has participated in all aspects of the special education process. I find no issue with the reasonableness of the costs, including tuition, associated with the Private School and the Student is enrolled for the 2022-2023 school year (P-G; P-K). D. Special Transportation Services The IDEA specifically includes transportation, as well as any modifications or accommodations necessary in order to assist a student to benefit from his or her special education, in its definition of related services.[40] In addition, State law defines special education as "specially designed instruction . . . and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability," and requires school districts to provide disabled students with "suitable transportation to and from special classes or programs." [41] Specialized forms of transportation must be provided to a student with a disability if necessary for the student to benefit from special education, a determination which must be made on a case-by-case basis by the CSE.[42] If the student cannot access his or her special education without provision of a related service such as transportation, the district is obligated to provide the service, "even if that child has no ambulatory impairment that directly causes a 'unique need' for some form of specialized transport."[43] The requested transportation must also be "reasonable when all of the facts are considered." [44] According to a guidance document, the CSE should consider a student'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".[45] Other relevant considerations may include 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. [46] Here, the special transportation and accommodations were recommended by CSE in both IEPs entered into evidence. As such, I find the student is entitled to the above special transportation services given that the District’s own CSE has recommended such transportation services. E. Translation of Document and Translator The DPC alleges, among other deficiencies, that the District failed to allow the parent to meaningfully participate in failing to provide copies of the student’s IEP and documents in Spanish. Having found above that the District failed to provide the student with a FAPE on other grounds, I express no finding in this decision that such a failure to translate documents is a basis for, or contributed to, my finding of a denial of FAPE in this matter. On the contrary, as further discussed below, I do not find that such a failure to translate documents implicates a denial of FAPE. Furthermore, I would not have been inclined to order such prospective relief as proposed by the petitioner for future IEP meetings which have not occurred and may not occur for a variety of reasons.
The IDEA sets forth procedural safeguards that include providing parents an opportunity "to participate in meetings with respect to the identification, evaluation, and educational placement of the child" (20 U.S.C. § 1415[b][1]). Federal and State regulations governing parental participation require that school districts take steps to ensure that parents are present at their child's IEP meetings or are afforded the opportunity to participate (34 CFR 300.322; 8 NYCRR 200.5[d]). Although school districts must provide an opportunity for parents to participate in the development of their child's IEP, mere parental disagreement with a school district's proposed IEP and placement recommendation does not amount to a denial of meaningful participation (see F.L. v. Bd. of Educ. of Great Neck Union Free Sch. Dist., 735 Fed. App'x 38, 40 [2d Cir. Aug. 24, 2018] [noting that "'[a] professional disagreement is not an IDEA violation'"], quoting P.K. v. Bedford Cent. Sch. Dist., 569 F. Supp. 2d 371, 383 [S.D.N.Y. 2008]; T.F. v. New York City Dep't of Educ., 2015 WL 5610769, at *5 [S.D.N.Y. Sept. 23, 2015]; A.P. v. New York City Dep't of Educ., 2015 WL 4597545, at *8, *10 [S.D.N.Y. July 30, 2015]; E.F. v. New York City Dep't of Educ., 2013 WL 4495676, at *17 [E.D.N.Y. Aug. 19, 2013] [stating that "as long as the parents are listened to," the right to participate in the development of the IEP is not impeded, "even if the [district] ultimately decides not to follow the parents' suggestions"]; Sch. for Language & Commc'n Dev. v. New York State Dep't of Educ., 2006 WL 2792754, at *7 [E.D.N.Y. Sept. 26, 2006] ["Meaningful participation does not require deferral to parent choice"]). When determining whether a district complied with the IDEA's procedural requirements, the inquiry focuses on whether the parents "had an adequate opportunity to participate in the development" of their child's IEP (Cerra, 427 F.3d at 192). Moreover, "the IDEA only requires that the parents have an opportunity to participate in the drafting process" (D.D-S. v. Southold Union Free Sch. Dist., 2011 WL 3919040, at *11 [E.D.N.Y. Sept. 2, 2011], aff'd, 506 Fed. App'x 80 [2d Cir. Dec. 26, 2012], quoting A.E. v. Westport Bd. of Educ., 463 F. Supp. 2d 208, 216 [D. Conn. 2006]; see T.Y. v. New York City Dep't of Educ., 584 F.3d 412, 420 [2d Cir. 2009] [noting that the IDEA gives parents the right to participate in the development of their child's IEP, not a veto power over those aspects of the IEP with which they do not agree]).
In addition, the district "must take whatever action is necessary to ensure that the parent understands the proceedings of the [CSE] meeting, including arranging for an interpreter for parents [who are hearing impaired] or whose native language is other than English" (34 CFR 300.322[e]; 8 NYCRR 200.5[d][5]; see also Application of a Student with a Disability, Appeal No. 13-136).[47] With respect to the translation of documents, both federal and State regulations require that a district provide parents with certain documents in their native language—including the "results of the evaluations" ("unless it is clearly not feasible to do so")—ensure that consent and procedural notices are provided in the parents' native language, and provide a translator at all times during the impartial hearing process (see, e.g., 20 U.S.C. § 1415[b][4], [d][2]; 34 CFR 300.9[a]; 300.503[c], 300.504[d]; 8 NYCRR 154-1.3[b], 200.1[l][1], 200.4[a][9][ii], [b][6][xii], [g][2][ii], 200.5[a][4], [f][2]). The record does not indicate that the parent was without an interpreter or bilingual personnel during the IEP meetings. Neither the IDEA nor federal or State regulations require that a district provide parents with a copy of the IEP in their native language (Letter to Boswell, 49 IDELR 196 [OSEP 2007] [noting that while "[t]here is no requirement in IDEA or in its accompanying regulations that all IEP documents must be translated," districts are required to provide parents with full information, in their native language, of all information relevant to activities for which consent is sought]; see 34 CFR 300.9[a], 300.320; 8 NYCRR 200.1[l][1], 200.4[d][2]). [48] Because neither the IDEA nor federal or State regulations require that a district provide parents with a copy of the IEP in their native language, and because Petitioner failed to offer any case law to the contrary, I decline to grant Petitioner’s request for relief. Furthermore, a finding that the student did not receive a FAPE for the 2022-2023 school year could have been found in this context only if procedural inadequacies involving the failure to provide an interpreter at the October 2022, CSE meeting—and the failure to provide the parents with documents translated into their native language—significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student (20 U.S.C. §1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]). Thus, the evidence in the hearing record supports the conclusion that the parent was not significantly impeded from participating at the October 2022 CSE meeting as she was able to seek the assistance of a translator during the CSE meeting, and any procedural irregularities resulting from the district’s failure to provide a dedicated interpreter did not, in and of itself, significantly impede the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student (20 U.S.C. §1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]) (see also, Application of a Student with a Disability, Appeal No. 20-174). Finally, as discussed above, neither the IDEA nor federal or State regulations require that a district provide parents with a copy of the IEP in their native language, thus the failure to do so would not form the basis for a denial of FAPE.
As such, based on the above, I decline to order this requested relief. [49]
CONCLUSION
Based on a review of the record and the findings mentioned above, the undersigned makes the following
findings:
• The District failed to provide the student with a FAPE during the 2022-2023 school year.
• The parent’s unilateral placement at Private School was appropriate and equitable considerations support an award of tuition reimbursement and/or direct funding for the 2022-2023 school year.
• The student is entitled to special education transportation to and from school.
• The undersigned has reviewed the parent’s remaining contentions and find them to be either unnecessary to this decision, without merit, beyond my jurisdiction, too vague to be of use, or without sufficient basis in the record for a finding and award of relief. Accordingly, any relief not specifically discussed in this decision is denied, and all the Parent’s remaining claims not discussed herein are dismissed with prejudice.
ORDER
IT IS HEREBY ORDERED, that the New York City Department of Education shall directly pay Private School the balance for all tuition and fees for the student’s unilateral placement at Private School for the 2022-2023 school year within 25 calendar days of this Order, with the total amount not to exceed $112,000;
IT IS FURTHER, ORDERED, that the New York City Department of Education shall provide special education transportation to and from school.
DATED: SO, ORDERED
3/31/2023 /s/ Teril Holston
Teril Holston, Esq., IHO
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.
IMPARTIAL HEARING OFFICER'S CERTIFICATION OF THE RECORD
I, Teril Holston, Impartial Hearing Officer in this matter, do hereby certify that the below Index of Exhibits included within this Findings of Fact and Decision itemizes the entire record before me. I further certify that the materials included in the record are either the original or a true copy of the original materials that were provided to me in this matter.
DATED: CERTIFIED BY
3/31/2023 /s/ Teril Holston
Teril Holston, Esq., IHO
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] Exhibits shall be referred to as follows: “P” for Parent Exhibit; “DOE” for the District’s or Department’s Exhibits; and “IHO” for the Impartial Hearing Officer’s exhibits.
[3] All information is upon information and belief, after review of hearing record developed by IHO 1.
[4] A more detailed list of exhibits is attached.
[5] Although only portions of the evidence are referenced herein, the testimony and documents were reviewed and considered, in full.
[6] See, 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 US 49 (2005).
[7] Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 188 (1982).
[8] See, Application of Child with a Disability, Appeal No. 05-061, quoting, Rowley at 206.
[9] See, Walczak v. Florida Union Free Sch. Dt., 142 F.3rd 119 (2nd Cir. 1998).
[10] 20 U.S.C. § 1415[f][3][E][i].
[11] Rowley, 458 U.S. at 203.
[12] Endrew F. v. Douglas Cnty. Sch. Dist. RE-1, 137 S. Ct. 988, 999
[13] Id.
[14] See, Walzczak, supra; Id., Appeal No. 00-005.
[15] 20 U.S.C. § 1401[9][D]; 34 CFR 300.17[d]; 20 U.S.C. § 1414[d]; 34 CFR 300.320.
[16] T.L. v. New York City Dep't of Educ., 2012 WL 1107652, *14 [E.D.N.Y. Mar. 30, 2012]; D.D-S. v. Southold Union Free Sch. Dist., 2011 WL 3919040, at *13 [E.D.N.Y. Sept. 2, 2011]; A.L. v. New York City Dep't of Educ., 812 F. Supp. 2d 492, 503 [S.D.N.Y. 2011]; A.P. v. Woodstock Bd. of Educ., 370 Fed. App'x 202, 205, 2010 WL 1049297 [2d Cir. Mar. 23, 2010]; Van Duyn v. Baker Sch. Dist. 5J, 502 F.3d 811, 821-22 [9th Cir. 2007]; Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 [5th Cir. 2000].
[17] Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998], at 132.
[18] Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130.
[19] Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192.
[20] Educ. Law § 4404[1][c]; see R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 [2d Cir. 2012].
[21] Endrew F., 137 S.Ct. at 1002.
[22] . Frank G. v Bd. of Educ., 459 F.3d 356, 364-65 (2d Cir. 2006)
[23] Id.; see Gagliardo, 489 F.3d at 115.
[24] 20 U.S.C. § 1401[29]; 34 CFR 300.39[a][1]; Educ. Law § 4401[1]; 8 NYCRR 200.1[ww]; Rowley, 458 U.S. at 188-89.
[25] Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370
[26] See, Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129.
[27] Carter, 510 U.S. at 14
[28] Id.
[31] Gagliardo, 489 F.3d at 115, citing Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26-27 (1st Cir. 2002)
[32] Frank G., 459 F.3d at 364.
[33] Frank G., 459 F.3d at 363-64 (quoting, Burlington, 471 U.S. at 374).
[34] 20 U.S.C. § 14129(a)(10)(C)(iii)(I); see 34 CFR 300.148(d)(1)
[35] Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 (1st Cir. 2004).
[36] 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., 459 F.3d at 376; Voluntown, 226 F.3d at 68).
[37] S.W. v New York City Dep't of Educ., 646 F. Supp. 2d 346, 361-63 (S.D.N.Y. 2009).
[38] Bd. of Educ. of Yorktown Cent. Sch. Dist. v C.S., 990 F.3d 152, 171 (2d Cir. 2021).
[39] See 20 U.S.C. § 1412(a)(10)(C)(iv); 34 C.F.R. § 300.148(e)(1)
[40] 20 U.S.C. § 1401[26]; see 34 CFR 300.34[a], [c][16]
[41] Educ. Law §§ 4401[1]; 4402[4][a]; see Educ. Law § 4401[2]; 8 NYCRR 200.1[ww]
[42] Irving Indep. Sch. Dist. v. Tatro, 468 U.S. 883, 891, 894 [1984]; Dist. of Columbia v. Ramirez, 377 F. Supp. 2d 63 [D.D.C. 2005]; see Transportation, 71 Fed. Reg. 46576 [Aug. 14, 2006]; "Questions and Answers on Serving Children with Disabilities Eligible for Transportation," 53 IDELR 268 [OSERS 2009]; Letter to Hamilton, 25 IDELR 520 [OSEP 1996]; Letter to Anonymous, 23 IDELR 832 [OSEP 1995]; Letter to Smith, 23 IDELR 344 [OSEP 1995]
[43] Donald B. v. Bd. of Sch. Commrs., 117 F.3d 1371, 1374-75 [11th Cir. 1997] [emphasis in original]
[44] Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ., 790 F.2d 1153, 1160 [5th Cir. 1986]
[45] "Special Transportation for Students with Disabilities," VESID Mem. [Mar. 2005], available at http://www.p12.nysed.gov/specialed/publications/policy/specialtrans.pdf
[46] see Donald B., 117 F.3d at 1375; Malehorn v. Hill City Sch. Dist., 987 F. Supp. 772, 775 [D.S.D. 1997])
[47] Although the IDEA defines "native language" for an individual of limited English proficiency who is not a student as "the language normally used by that individual" (20 U.S.C. § 1401[20]; 34 CFR 300.29[a]; 8 NYCRR 200.1[ff][1]), the pertinent laws and regulations defining "limited English proficiency" only apply to students (see 20 U.S.C. § 9101[25]; 34 CFR 300.27; 8 NYCRR 200.1[iii]). In addition, the United States Department of Education's Office of Civil Rights has issued guidance indicating that a parent with limited English proficiency is one "whose primary language is other than English and who ha[s] limited English proficiency in one of the four domains of language proficiency (speaking, listening, reading, or writing)" (Dear Colleague Letter: English Learner Students and Limited English Proficient Parents at p. 37 (OCR 2015).
[48] Although not required to provide parents with a copy of an IEP in their native language, doing so would be in keeping with the spirit of the IDEA and is one way to demonstrate that the parent has been "fully informed of their child's educational program" (Letter to Boswell, 49 IDELR 196 [OSEP 2007]).
[49] While not required by law or ordered herein, the NYC DOE Special Education Standard Operating Procedures Manual updated November 16, 2021, provides guidance on seeking Translation and Interpretation Services and indicates that the DOE will translate IEPs and make interpreters available upon request. If they have not already done so, the parent may consider following the guidance therein. See https://infohub.nyced.org/docs/default-source/default-document- library/specialeducationstandardoperatingproceduresmanualmarch.pdf?sfvrsn=4cdb05a0_2