New York City Department of Education, Impartial Hearing Decision

Case Number: 589648 – NYC: 240677

FINDINGS OF FACT AND DECISION

For the Parents:

REDACTED, Esq., Attorney for Parent

REDACTED, Parent Parent

REDACTED, Dean of Studies, The REDACTED School

I. Introduction and Procedural History

On November 4, 2022, I was appointed to conduct an impartial hearing pursuant to 20 U.S.C. §1415, regarding the special education program of REDACTED ("Student") brought by his parents (“Parent” or “Parents”). A prehearing conference was held on December 7, 2022, status conferences were held on January 30, 2023 and April 3, 2023 and a one-day hearing was held on May 9. 2023. The REDACTED (“REDACTED”) was represented by REDACTED, Esq. and Parent was represented by REDACTED, Esq.. During the course of the proceedings, the parties moved to extend the case compliance date in this matter, all in order to allow for settlement negotiations and an examination of all relevant witnesses and documents, and to complete the hearing. In considering those requests, I weighed the cumulative impact of the relevant factors and found that, in allowing for adequate time for such purposes, the delays in the resolution of the matter and the extensions of time for such purposes were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The hearing record was closed effective May 9. 2023.

II. Background

Parent filed a due process complaint on October 20, 2022, alleging a denial of a Free and Appropriate Public Education for the 2022-2023 school year, and requesting tuition at the REDACTED School. (Exh. A). There was one day of hearing. The REDACTED did not submit evidence or provide witness testimony. Parent provided direct testimony by affidavit of two witnesses, a representative from the unilateral placement and Parent. Both witnesses were available for cross-examination during the hearing.

III. Discussion

FINDINGS OF FACT AND DECISION

FINDINGS OF FACT

Student has been diagnosed with Autism Spectrum Disorder, Unspecified Depressive Disorder, ADHD, Tourette’s Disorder, Obsessive Compulsive Disorder and Dysphonia. (Exh. E, page 4 and Exh. O, page 1). Prior to attending the REDACTED School, Student attended the [REDACTED] School, and was discharged to a less restrictive setting on or about June 24, 2022. (Exh. E and Exh. F). Student was at REDACTED for almost 3 years, where he met his goals. He was ready to move to a less restrictive residential setting; he still needed a fair amount of support, but not the level of support that REDACTED provided, and REDACTED does not go 46-7past 10th grade. (Tr. 46-7).

As Student still needed a wraparound 24 hour setting and Parent located the REDACTED School, where Student began attending in September of 2023. (Tr. 34, 35, 39 and Exh. P). The REDACTED School is a program for boys in grades 9-12 who struggle in a traditional school environment; the school provides individualized support to address students’ needs, and there is approximately 2 ½ hours daily of teacher supervised, structured study time six days per week. (Exh. I). The individualized approach supports skills development in executive functioning and analytical and syntactical reasoning through visual, auditory and kinesthetic teaching strategies. (Exh. P, page 2). There are 43 students, the largest class is five students, and there is a communications program six days per week in various settings, where Student works on communicating his frustrations and building his relationships. (Tr. 37). There is a sports program six days per week. (Tr. 36).

Student’s schedule includes English 11, Spanish, Anatomy and Physiology, Psychology, Algebra 2, and study hall. Student meets with a communications group, a committee for accountability and school forum once a week, meets with his advisor twice a week and participates in clubs once per week. (Exh. K). Student receives direct instruction and individualized support with his study skills, focus, assistive technology, and writing skills. (Exh. P, page 4). Student needs a significant amount of executive functioning assistance as he has difficulty in the classroom. He is intelligent, but he needs assistance in writing and in taking feedback in the classroom. (Tr. 28). Student’s behavioral deficits are address and he has an advisor/advocate, as well as a therapeutic plan (Tr. 40). Student requires a wraparound residential program to address his challenges with emotional dysregulation, relationship building and clear communication, as well as consistent access to his adult mentors and faculty, roundthe-clock access to teachers and advisors, and a structured, supportive environment. (Exh. P, page 4-5).

Student has made progress while attending this unilateral placement. (Exh. L and Exh. M). This includes progress with his coursework, social skills, life skills and transitional skills. (Exh. P, page 5).

Parent signed an enrollment contract on or about April 25, 2022. (Exh. H). Parent is paying tuition pursuant to the terms of the enrollment agreement and is seeking funding and reimbursement. (Exh. J and Exh. O).

Parent filed a Ten-Day Notice on June 17, 2022. (Exh. B). The REDACTED responded and declined to recommend the case for settlement. (Exh. C).

FAPE

The IDEA was enacted to “to ensure that all children with disabilities have available to them a free appropriate public education” (“FAPE”) and to ensure that the rights of children with disabilities and parents of such children are protected.” 20 U.S.C. sec. 1400(d)(1)(A), (B). See also, Forest Grove Sch. Dist. v. T.A., 557 U.S. 2330, 239-40 (2009). Under this statute is the requirement that the education to which access is provided be sufficient to confer some education benefit upon the disabled child. In deciding whether the school district provided as student a FAPE, the inquiry is limited to (a) whether the school district complied with the procedures set forth in IDEA; and (b) whether the student’s IEP is reasonably calculated to enable the student to receive education benefit. Bd. of Educ. v. Rowley, 458 U.S. 176, 179-191 (1982).

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 (20 U.S.C. § 1415(f)(3)(E)(i)). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction." (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). In Endrew F. Douglas County School District RE-1, 580 U.S. ___, 137 S.Ct. 988 (2017), the Supreme Court held that in or order “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. Id. At *10. While the statute ensures an "appropriate" education, it does not guarantee "one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989) (citations omitted); see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 (citations omitted); see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008); Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412(a)(5)(A); 34 CFR 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR 200.1(cc), 200.6(a)(1); see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 (S.D.N.Y. 2010), aff'd, 486 Fed. App'x 954 (2d Cir. Oct. 18, 2012); E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 (S.D.N.Y. 2009).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320(a)(1); 8 NYCRR 200.4(d)(2)(i); Tarlowe v. New York City Bd. of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008) (noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320(a)(2)(i), (2)(i)(A); 8 NYCRR 200.4(d)(2)(iii)) and provides for the use of appropriate special education services. (see 34 CFR 300.320(a)(4); 8 NYCRR 200.4(d)(2)(v).

BURDEN OF PROOF

The burden of proof is on the REDACTED to show that the provided IEP provided FAPE, except in cases involving a unilateral placement, where the parent must prove the appropriateness of the unilateral placement. N.Y. Educ. Law § 4404(1)(c); see also Application of a Student with a Disability, Appeal No. 12-062; Application of a Student with a Disability, Appeal No. 11-053; Application of a Student with a Disability, Appeal No. 11-091.

The REDACTED did not submit evidence, provide witness testimony or otherwise argue that FAPE was provided. Therefore, the REDACTED did not meet its burden of proof and Parent is entitled to relief.

APPROPRIATENESS OF THE PRIVATE SCHOOL

Once it is determined that the student has not been provided a FAPE, under New York law, the burden of proof shifts to the parents to show that their unilateral private placement was appropriate. A.D. v. Bd. of Educ. of City Sch. Dist. of City of New York, 690 F. Supp. 2d 193, 206 (S.D.N.Y. 2010) (citing Schaffer, 546 U.S. at 58; N.Y. Educ. L. § 4404(1)(c)). Under the IDEA, parents who unilaterally place their child in a private school do so at their financial risk. Individuals with Disabilities Education Act, §§612(a)(1)(A), 614(d).

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (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, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE. (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).

The appropriateness of the parents’ choice turns on whether the chosen school “is reasonably calculated to enable the child to receive educational benefits.” Gagliardo v. Arlington Central School District, 489 F.3d 105, 112. A private placement meeting this standard is “one that is ‘likely to produce progress, not regression.’” Id. (quoting Walczak, 142 F.3d at 130). The parents’ choice must be “appropriate,” “not . . . perfect.” Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006). An appropriate private placement “need not meet state education standards or requirements.” Id. (citing Carter, 510 U.S. at 14). Ultimately, the standard to be applied is to determine whether “[the] unilateral private 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 115. The Second Circuit in Frank G, 459 F.3d at 364-5 held: “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.” the private school must provide an educational program which meets the student's special education needs (see Hardison v. Bd. of Educ., 773 F.3d 372, 386 [2d Cir. 2014]; Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129; Matrejek, 471 F.Supp. 2d at 419).

Parent has shown, through testimony, and documentation, that the REDACTED School understands Student’s unique educational needs and designed a program to address these needs. The REDACTED argues that a residential setting is too restrictive. (Tr. 53-4). However, the REDACTED failed to show that its recommended placement was appropriate or provide a justification for changing the recommendation for a residential placement or provide any justification for this assertion. The uncontroverted evidence is that Student still needs the added structure provided by a residential placement. Therefore, Parent has met his burden of proof to show the appropriateness of the unilateral placement and is entitled to reimbursement for her unilateral placement.

BALANCING OF THE EQUITIES

The IDEA also provides that reimbursement 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 (20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; see 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]). The final criterion for a reimbursement award is that the parents' claim must be supported by equitable considerations. (Burlington, 471 U.S. at 374; M.C. v. Voluntown, 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"]). 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]; C.L., 744 F.3d at 840 [noting that "[i]mportant 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"]).

There is nothing in the record indicating a need to change the balancing of the equities. Parent contacted the Committee on Special Education to voice concerns regarding the IEP and proposed placement and sent the required Ten-Day Letter. (Exh. B). There are no allegations of obstruction or that Parent was uncooperative. Therefore, Parent is entitled to the entirety of tuition for the 2022-2023 school year.

IV. Order

IT IS THEREFORE ORDERED THAT:

1. The REDACTED failed to provide Student a Free and Appropriate Public Education for the 2022-2023 school year.

2. The REDACTED shall fund/reimburse Parent for tuition at the REDACTED School for the 2022-2023 school year within thirty days of receipt of invoice or proof of payment and proof of attendance.

Dated: May 20, 2023

AUDREY DANIEL, ESQ.

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.

EXHIBITS ADMITTED AT HEARING

2. District IEP, dated January 31, 2022 31 pages Parent DOE

A. Impartial Hearing Request 10/20/22 4 pages

B. Ten-Day Notice 6/17/22 4 pages

C. Ten-Day Notice Response 6/24/22 1 page

D. Psychological Update 2/13/20 4 pages

E. Individualized Transition/Discharge Summary 6/24/22 3 pages

F. Discharge/Treatment Summary 6/24/22 12 pages

G. Tuition Affidavit 1/3/23 1 page

H. Enrollment Contract 4/25/22 4 pages

I. REDACTED School Program Description undated 1 page

J. Tuition Affidavit 1/3/23 1 page

K. Class Schedule 2022-2023 1 page

L. Vocational Interview-Teacher Assessment 2/1/2023 3 pages

M. Term Comments Fall 2022 Fall 5 pages

N. Term Comments Winter 2022/23 Winter 5 pages

O. Affidavit in lieu of direct testimony – REDACTED 4/2/23 3 pages

P. Affidavit in lieu of direct testimony – REDACTED Impartial Hearing Officer None. 5/2/23 5 pages