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FINDINGS OF FACT & DECISION
Case No.: 240785
Student’s Name: [REDACTED] (hereinafter referred to as “Student”)
Date of Birth: [REDACTED]
District: REDACTED (“District”)
Hearing Request by: [REDACTED] (“Parent”)
Hearing Date(s): 5/11/23, 8/8/23
Record Close Date: 9/2/23
Hearing Officer: Sebastian A. Weiss, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED:
For the Student:
[REDACTED]
(“Parent Representative”)
[REDACTED]
(“Parent or Mother”)
[REDACTED]
(“Unilateral Placement Supervisor”)
For the Department of Education:
[REDACTED]
(“District Representative”)
BACKGROUND AND PROCEDURAL HISTORY
On October 21, 2022, the Parents filed a Due Process Complaint (“DPC”) pursuant to the Individuals with Disabilities Education Act (“IDEA”). The relief sought by the DPC includes direct payment of tuition for the Student’s unilateral placement at [REDACTED] (“Unilateral Placement”) for the ten month 2022-23 school year (“School Year”). (Ex. A-5). [1]
The undersigned Hearing Officer was appointed to the above matter on November 4, 2022. The hearing on the merits was conducted on May 11 and August 8, 2022.
ISSUES AND ARGUMENTS
PARENT CASE:
The DPC alleges that the District denied the Student a Free Appropriate Public Education (“FAPE”) as required by the IDEA for the School Year by failing to provide an appropriate placement and program for the Student, which forced the Parent to place the Student at the Unilateral Placement. (Ex. A-5)
The Parent’s case presented at the hearing can be summarized as follows: The evidence and testimony shows that the Department of Education failed to provide a FAPE to the student for the School Year. The burden of proof, including the burden of production and persuasion, is on the District, except that it is the Parent's burden to show that the unilateral placement was appropriate. Included in the Department of Education's burden is the obligation to show that the program it recommended for the student was appropriate and reasonably calculated to enable the student to make meaningful progress and that it provided a public school placement.
The District did not put on a Prong I case. The District submitted evidence but failed to present any witnesses and failed to explain the appropriateness of the IEP it recommended and additionally failed to show it provided a school placement.
An IEP on its own does not establish a FAPE has been offered to a student. Instead, testimony may be received that explains or justifies the services listed in the IEP. The District does not meet its burden of proof to demonstrate that sufficient evaluative material was relied upon in creating a student's educational program without testimony presented to that effect.
The documentary evidence and testimony in this case establishes that the student required placement in a full time special education classroom of up to 12 students, one teacher, and one assistant that could provide him with the individualized attention he needed as well as a behavioral plan to address the student's significant behavioral and social challenges. Additionally, the District failed to show it provided the student with a public school placement for the School Year, and the parent testified that she did not receive a public school placement from the District for the School Year. Although she sent a notice to them requesting one, they had not responded. And she testified that if she had been provided a public school placement, she would have considered that placement.
The parent met her burden of showing 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. However, the private school placement does not need to meet the IDEA definition of a free and appropriate public education or state education standards or requirements. That comes from Frank G. v. Board of Ed.
The private placement does not need to provide certified special education teachers. 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. Additionally, a finding of progress is not required for a determination that a student's unilateral placement is adequate. That comes from the Scarsdale Union case.
The evidence and testimony show that the Unilateral Placement created a customized plan to address the student's needs which was calculated to enable the student to make progress. And although not required to be shown, the student, in fact, made actual progress at the school. The Unilateral Placement Supervisor testified regarding the student's needs and challenges and the program that the school created to address those specific needs and challenges and to enable the student to make meaningful progress.
The evidence and testimony showed this included placing the student in a small class with two teachers at all times, which included a licensed and certified special education teacher, extensive behavioral supports and reinforcement, social skills training, including an ABA para, and numerous other modifications and accommodations in order to meet the student’s unique needs. The Parent's witness further testified regarding the need to address the student's behavioral challenges, including the need for a behavioral plan to be created and implemented for the student. Although not required to be shown, the Parent's witness also testified to the actual academic and functional progress that the student made during the school year.
There is no indication that the parent failed to cooperate with the District or engage in any context that prevented the District from fulfilling its obligation to the student. The parent sent a letter to the District prior to the school year to remind the District of its obligation to the student. But the District still failed to offer the student a FAPE, as they did not respond to the parent's letter and did not provide the Student with a public school placement.
Accordingly, the parent had no choice but to unilaterally enroll the student in an appropriate special education program for the School Year. Additionally, a ten-day notice was not required in this case since the student was not being removed from a public school nor had a public school placement been offered to him.
Additionally, the parent testified that she had not received the Procedural Safeguards Notice from the District within a year of enrolling the student in the Unilateral Placement. The District did not provide any evidence of providing the parent with a prior written notice or Procedural Safeguards Notice to the parent. It's well established that a parent's subjective intent or preference for a nonpublic educational setting is not relevant to a determination on the equities, even if in seeking tuition funding, the parent has made a unilateral placement and then seeks tuition reimbursement expecting that a school district would ultimately need to pay for that placement. In Scarsdale, the court held that parent's pursuit of private placement was not a basis for denying tuition reimbursement, even assuming parent never intended to keep the student in public school. The parent in this case testified that she did intend to send the student to public school if the District had offered a public school placement.
The evidence shows that the family could not afford to pay or advance the Unilateral Placement tuition for the school year. In light of the foregoing, the Parent seeks direct tuition funding for the Unilateral Placement for the School Year, which is $120,000 minus $5,000 for the religious portion.
The Hebrew religious classes are Monday to Thursday from 8:45 to 9:15, which amounts to about more or less than five percent.
DISTRICT CASE:
At the outset of the hearing, the District Representative stated that the District would not seek to demonstrate that it offered the student a FAPE for School Year, but reserves the right to challenge the appropriateness of the unilateral placement and to argue that equities are in its favor. (T 63) In their closing statement, The District Representative argued the following (T 151-55): Even when the District did not provide this student a FAPE, the parent's seeking reimbursement still bear the burden of demonstrating that their private placement was appropriate, even if there was no placement or the IEP was inappropriate.
The placement witness discussed a number of assessments including the Bader assessment but the Bader assessment is not included in any of the reports.
The witness testimony about how this student was making progress is based upon assessments that were supposedly conducted that aren't really included in the record in this case, along with other data which is not included in the record in this case.
The Parent has not met its burden to demonstrate that the Unilateral Placement is appropriate and is actually helping the student to progress.
The other question that needs to be addressed is the reasonableness of the tuition rate. In this case, the contract is unclear in that it states that it's $10,000 a month but on the next line it says $12,000 a month. Regarding religious instruction, the parents say that the religious instruction is approximately five percent of the instructional day, but they ask for only a $5,000 reduction, which would be appropriate if the tuition in the was 100,000. Five percent of $120,000 is actually $6,000. The tuition should be reduced in accordance with that portion of the day that the hearing officer would find is actually devoted to religious instruction. The parent testified she thought it was at least an hour a day, and the placement witness testified differently.
The District submitted eight documents into evidence and did not present any witness testimony. The District Representative cross-examined the Parent witnesses.
SUMMARY OF APPLICABLE LAW
The IDEA is a comprehensive statutory framework established by the United States Congress to ensure that students with disabilities are afforded a FAPE. 20 U.S.C. §1400(d)(1)(A); see Schaffer v. Weast, 126 S. Ct. 528 (2005); Bd. of Educ. v. Rowley, 458 U.S.176 (1982); Frank G. v. Bd. of Educ., 459 F.3d 356 (2d Cir. 2006). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP, which is reasonably calculated to enable the student to receive educational benefit. See Rowley; 20 U.S.C. § 1401(9)(D); 34 C.F.R. § 300.17; see 20 U.S.C. § 1414(d); 34 C.F.R. § 300.22. The student’s recommended program must also be provided in the least restrictive environment. 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. § 300.114(a)(2); 8 NYCRR 200.6(a)(1).
In Endrew F. v. Douglas County School District, 580 U.S. 999, 14 (2017), the Court held that, “[t]o 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, as a focus on the particular child is at the core of the IDEA. The instruction offered must be “specially designed” to meet a child’s “unique needs” through an “individualized education program.” §§1401(29), (14) (emphasis added), to reflect the fact that a contemplated IEP must be focused on the “particular child that is at the core of the IDEA.”
Pursuant to New York Education Law §4404(1)(c), the board of education shall have the burden of proof, the burden of persuasion, and the burden of production in impartial hearings except for instances where the parent is seeking tuition reimbursement for a unilateral parental placement and in those cases the parent shall have the burden of persuasion and the burden of production as to the appropriateness of the placement. The burden of proof in matters such as this shall only be met upon a fair preponderance of the evidence. The preponderance of the evidence standard requires the trier of fact to find that the existence of a fact is more probable than its nonexistence. Concrete Pipe & Products of California, Inc. v. Construction Laborers Pension Trust for Southern California, 508 U.S. 602, 622 (1993). In other words, preponderance of the evidence is evidence that is more convincing than the evidence offered in opposition to it. Greenwich Collieries v. Director, Office of Workers’ Compensation Programs, 990 F. 2d 730, 736 (3rd. Cir. 1993), aff’d, 512 U.S. 246 (1994).
The decision in this case rests on a determination of the three-pronged test set forth by the United States Supreme Court, which provided that a board of education may be required to pay for educational services obtained for a child by the child’s 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. School Committee of the Town of Burlington v. Dept. of Educ., Massachusetts, 471 U.S. 359 (1985); Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993).
Under the second prong of the Burlington/Carter test, the parents bear the burden of proving the appropriateness of the unilateral placement. See M.S. v. Board of Education of the City of Yonkers, 231 F.3d 96, 104 (2d Cir. 2000); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 94-29; Application of a Child with a Disability, Appeal No. 95-57. In order to meet that burden, the parents must show that unilateral placement offered an educational program designed to meet the Student’s special education needs. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 98-76; Application of a Child with a Disability, Appeal No. 94-29. A unilateral placement is only appropriate if it provides education instruction specifically designed to meet the unique needs of a handicapped child. Gagliardo v. Arlington Central School District, 489 F.3d 105 (2d Cir. 2007).
Regarding the placement of students with disabilities, N.Y. Comp. Codes R. & Regs. tit.
8 § 200.6(a)(3) states: “Students with disabilities placed together for purposes of special education shall be grouped by similarity of individual needs as defined in section 200.1(ww) of this Part, in accordance with the following: (i) The range of academic or educational achievement of such students shall be limited to assure that instruction provides each student appropriate opportunities to achieve his or her annual goals. The learning characteristics of students in the group shall be sufficiently similar to assure that this range of academic or educational achievement is at least maintained. (ii) The social development of each student shall be considered prior to placement in any instructional group to assure that the social interaction within the group is beneficial to each student, contributes to each student's social growth and maturity, and does not consistently interfere with the instruction being provided. The social needs of a student shall not be the sole determinant of such placement. (iii) The levels of physical development of such students may vary, provided that each student is provided appropriate opportunities to benefit from such instruction. Physical needs shall be considered prior to determining placement to assure access to appropriate programs. The physical needs of the student shall not be the sole basis for determining placement. (iv) The management needs of such students may vary, provided that environmental modifications, adaptations, or, human or material resources required to meet the needs of any one student in the group are provided and do not consistently detract from the opportunities of other students in the group to benefit from instruction.”
Regarding least restrictive environment, N.Y. Comp. Codes R. & Regs. tit. 8 § 200.1(cc) states that “Least restrictive environment means that placement of students with disabilities in special classes, separate schools or other removal from the regular educational environment occurs only when the nature or severity of the disability is such that even with the use of supplementary aids and services, education cannot be satisfactorily achieved. The placement of an individual student with a disability in the least restrictive environment shall: (1) provide the special education needed by the student; (2) provide for education of the student to the maximum extent appropriate to the needs of the student with other students who do not have disabilities; and (3) be as close as possible to the student's home.”
FINDINGS OF FACT
At the beginning of the School Year, the Student was a nine year old boy entering the [REDACTED] grade. The Disability Classification indicated on the Student’s IEP is Speech or Language Impairment. (Ex. 4-1) The Instructional/Functional Levels on the Student’s IEPs are several years behind grade level.
The Student has academic and cognitive delays. This includes delays in both expressive and receptive language skills and socialization. The Student also has behavioral and social challenges which impact his academic performance.
The Student attended the Unilateral Placement for the two prior school years and has never attended public school.
On June 13, 2019, the District conducted a Psychoeducational Evaluation of the Student (“2019 District Psychoeducational Evaluation”). (D Ex. 1)
The Student’s cognitive development was assessed with the Wechsler Intelligence Scale for Children Fifth Edition (WISC-V). The FSIQ score is derived from seven subtests and summarizes ability across a diverse set of cognitive functions. (This score is typically considered the most representative indicator of general intellectual functioning. Subtests are drawn from five areas of cognitive ability: verbal comprehension, visual spatial, fluid reasoning, working memory, and processing speed. The Student’s FSIQ score was in the very low range when compared to other children his age.
With respect to verbal comprehension, The Verbal Comprehension Index (“VCI”) measured the Student’s ability to access and apply acquired word knowledge. Specifically, this score reflects his ability to verbalize meaningful concepts, think about verbal information, and express himself using words. Overall, the Student’s performance on the VCI was lower than most children his age.
With respect to Academic Functioning, the WIAT-III was administered to assess the Student’s level of academic achievement. For reading, the Student performed within the average range on the Basic Reading Composite and in the below average range for the Early Reading Skills subtest. For mathematics, the Student performed within the low range. For written language, the Student performed within the below average range on the Alphabet Writing Fluency subtest and the Spelling subtest.
On December 14, 2021, the District developed an IEP for the Student with an implementation date of January 4, 2022 (“2021 IEP”). The 2021 IEP recommends the following special education program and related services for a ten month school year: (D Ex. 4-14, 4-15)
• 12:1+1 Special Class, English, with ten periods per week of Math and ELA, three periods per week of Social Studies, and two periods per week of Sciences;
• Counseling Services, Group service, English, one time per week for 30 minutes, Separate Location;
• Occupational Therapy, Individual Service, English, two times per week for [30] minutes, Separate Location;
• Speech-Language Therapy, Individual Service, English, three times per week for School Year and intends to place the Student at the Unilateral Placement (“Ten Day Notice”). (Ex. H)
On September 1, 2022, the Student was evaluated using the Vineland-3 Comprehensive Parent/Caregiver Form. (D Ex. 8-1, G-8) The Student’s overall level of adaptive functioning is described by his score on the Adaptive Behavior Composite (ABC). The Student’s ABC score was well below the normative mean of 100 (the normative standard deviation is 15). The percentile rank for this overall score is 7. The ABC score is based on scores for three specific adaptive behavior domains: Communication, Daily Living Skills, and Socialization.
On October 31, 2022, the District developed an IEP for the Student with an implementation date of November 14, 2022 (“2022 IEP”). (D Ex. 8) The 2022 IEP recommends the following special education program and related services for a ten month school year: (D Ex. 8-15, 16)
• 12:1+1 Special Class, English, with ten periods per week of Math and ELA, and five periods per week of Social Studies and Sciences;
• Counseling Services, Group service, English, one time per week for 40 minutes, Separate Location;
• Occupational Therapy, Individual Service, English, two times per week for [40] minutes, Separate Location;
• Speech-Language Therapy, Individual Service, English, three times per week for A tuition affirmation from the Unilateral Placement states that the tuition amount is “$120,000 for the school year of September 8, 2022 – June 17, 2023” (“Tuition Affirmation”). (Ex. D-1)
The Program Description states that the Unilateral Placement “was established to educate children with special needs by providing the finest in special education techniques in a comprehensive day school program. The program services children with learning disabilities, behavioral issues, and attention deficit disorders within a warm, self contained environment. Our program is arranged to provide individual curricula geared towards specific learning needs and styles as well as specialized focus on each student, afforded by the small class sizes. (Ex. C-4)
The Student’s Curriculum Schedule at the Unilateral Placement includes the following: (Ex. E-1)
• Hebrew
• English Language Arts
• Library
• Current Events
• Mathematics
• Science
• Meal Time: Social Integration
• Social Skills/Sports Program
• Social Studies
• Technology
• History
• Writing Workshop
• Counseling Services, 1 x 30, Group
• Occupational Therapy, 2x30, Individual
• Speech-Language Therapy, 3x30, Individual
For the School Year, the Unilateral Placement prepared the following for the Student: (D Ex. 6, P Ex. G)
• Functional Behavior Assessment;
• Treatment Plan;
• Assessment of Current Functioning;
• Behavior Intervention Plan;
• Teacher Progress Report
• Speech and Language Progress Report
• Occupational Therapy Progress Report
• Counseling Progress Report
WITNESS TESTIMONY
Unilateral Placement Supervisor
The Parent presented the direct testimony of the Unilateral Placement Supervisor at the hearing. A summary of the relevant testimony of this witness includes the following: (T 71-129)
The Unilateral Placement Supervisor has the following credentials: masters and license in general education; master's and license in special education; master's and license in literacy; license as a school building leader, which is a principal license; licensed behavior analyst since 2008; PhD candidate; 20 years of experience.
Her job responsibilities include oversight of individual students, their individualized plans as it relates to their academic needs, social, behavioral, making and overseeing the data collection, the coordination of staff, and overall making sure that the student is making meaningful, adequate progress in our program.
The Unilateral Placement is a program that is designed for students with behavioral challenges and language delays.
The Unilateral Placement is housed in a general education building.
The program follows the common core curriculum and then modifies and accommodates for each individual student in alignment with the ABA methodology.
The special education students interact with general education students up to three times per day, at meal time, during social skills time, and when a student achieves 80 percent accuracy in any of their goals.
The Unilateral Placement Supervisor has observed the Student in and out of the classroom. She coordinated with his staff, oversaw his plan as it related to his academic needs, his behaviors, his social-emotional needs.
There were a total of nine Students in the Student’s classroom, and up to 12. There was one licensed special education teacher in the classroom at all times, and assistants.
The Student has behavioral challenges. He has a lot of extroverted behaviors and lacks focus and attention. He has a hard time sustaining any time on task. The Student has a [REDACTED] which impacts him socially and academically.
He has a difficult time with organizational skills, attention and focus. In the area of language and in ELA, he has a hard time with receptive language. His reading comprehension is a direct reflection of that. His behavior is directly impacting his academics in the classroom.
The District IEPs are not appropriate because they do not include a behavior intervention plan and because they only recommend 25 periods in a special education classroom out of 35 periods which means that the Student would have ten periods in a general education setting in which he was struggling to even function in a special education setting based on his behavioral challenges and cognitive delay.
During the School Year, the Student made progress behaviorally, socially, and academically.
The Student received the related services of counseling, occupational therapy and speech therapy.
The portions of classroom instruction that were religious in nature are identified on the schedule as Hebrew.
Any religious component related to music was utilized under the Hebrew section. The Student does not read any other language other than English. If text is presented, it's always done through music. But that is not related to any of the music that is embedded or incorporated within the subject areas; two entirely separate components.
On cross examination, the Unilateral Placement Supervisor testified that there were two assistants at a time in the Student’s classroom who rotate based on subjects. Three sets of assistants would rotate through the classroom
The Student’s grade levels at the beginning of the School Year were based on a Bader assessment as well as data collection and teacher observations. The Bader assessment is an academic based assessment that does not give language scores.
The Student is assessed at the end of each reporting period. There are three reporting periods in a year. The Bader assessments generate which goals for the student to work on.
In the report card, a one is a B, a two is a B plus and a three is an A minus.
In addition to the Bader assessment, the Unilateral Placement utilizes the Rethink data collection platform for ongoing data collection of assessments. This includes the Vineland which is a Pearson based assessment embedded in the goals.
At the beginning of the School Year, the Student was at the beginning of the [REDACTED] grade level for reading and math and mid first grade level for writing.
At the end of the School Year, the Student was on the beginning of [REDACTED] grade level with respect to decoding and reading comprehension and mid [REDACTED] grade level with respect to writing.
The Unilateral Placement program is from 8:30a to 4:30p, or a total of eight hours, every day except Friday, which is from 8:30a to 1:30p, or five hours.
Music instruction is embedded within the other subject areas in and is not done as a separate subject since music is used within the program not to teach musical instruments, but to review or bypass memory challenges.
The 20% tuition increase is a regular increase that goes up as prices and inflation increase and based on financial and monetary costs. Mother
The Parent presented the direct testimony of the Student’s Mother at the hearing. A summary of the relevant testimony from this witness is as follows: (T 132-43)
The witness agreed with the Parent Representative’s statements that she did not receive a public school placement from the Department of Education for the School Year, and that she requested that the District provide a placement for the School Year by sending the Ten Day Notice by fax on August 16, 2022.
The witness agreed with the Parent Representative’s statement that she did not receive a Procedural Safeguards Notice from the District within a year prior to September 1st, 2022.
The Mother testified as to her ability to pay for the Unilateral Placement tuition.
The witness agreed with the District Representative’s statement that if offered a placement by the District for the school year she would have considered it.
The Student has never attended public school.
The Mother is provided with progress reports from the Unilateral Placement and is happy with the Student’s progress at the Unilateral Placement.
The Student’s behavior and socialization have improved.
The Student receives one hour per day of religious instruction.
DECISION
For cases seeking payment for tuition at a Unilateral Placement, the first prong of the Burlington/Carter analysis is whether the District has met its burden of proof regarding whether the Student was provided a FAPE for the School Year.
Based on a preponderance of the evidence standard, I find that the Student was not provided a FAPE for the School Year, primarily because the District did not present a case in this regard. By comparison, the Parent presented credible evidence regarding the Student’s academic and behavioral challenges and indicating that the Student requires a full time special education classroom. The District did not present a school location letter or other evidence indicating that the Student was offered a placement for the School Year.
With respect to the second prong of the Burlington/Carter analysis, the issue for adjudication at the hearing was whether the Unilateral Placement was appropriate. Under the Burlington/Carter analysis, the Parent bears the burden of proof in this regard.
The evidence indicates that the Unilateral Placement offers a special education program with small class sizes for children with special needs including learning disabilities, behavioral issues, and attention deficit disorders within a self contained environment. The Student was placed in a small class of up to 12 students with one special education teacher and one or more assistants. The Student also received related services of Counseling, OT and SLT. The Unilateral Placement prepared a Functional Behavior Assessment, Treatment Plan, Assessment of Current Functioning, and Behavior Intervention Plan for the Student.
However, there are discrepancies in the evidence regarding the Student’s special education program at the Unilateral Placement.
• The Student’s class size and student-teacher ratio are not explicitly stated in any of the documents prepared by the Unilateral Placement, and there are discrepancies in the evidence and witness testimony in this regard. The Unilateral Placement Supervisor’s testimony in this regard was not precise. The Unilateral Placement Supervisor testified that the class included nine students and up to 12.
The DPC states that the Student’s class had one teaching assistant but the Unilateral Placement Supervisor testified that there two assistants present at all times. The amount of time per day that the Student spends with general education peers was also not precisely defined by the testimony or evidence.
• Three Unilateral Placement report cards were submitted into evidence. Each party submitted a report card for the [REDACTED] grade, which are not identical and have different formats. (D Ex. 6-28, P Ex. (G-28) One of the [REDACTED] grade report cards has results for the first reporting period but not for the second or third reporting periods. The other [REDACTED] grade report card has results for the first and second reporting periods but not the third reporting period. In addition, the results and descriptions in the [REDACTED] grade report cards are not identical. The [REDACTED] grade report card is missing column headings. (D Ex. 3-27) All of the report cards are undated. The Unilateral Placement
Supervisor testified that the number grades on the report card correspond with letter grades however this grading system is not otherwise explained in the evidence and does not appear to allow for the possibility of the equivalent of a C or a D grade.
The District Representative argued that the Parent did not present sufficient evidence regarding the Student’s progress at the Unilateral Placement. However I do not find this argument to be persuasive as the parents are not necessarily required to prove that the Student actually made progress at the Unilateral Placement pursuant to the Burlington/Carter test. In order to meet their burden of proof under Burlington/Carter, the parents must show that unilateral placement offered an educational program designed to meet the Student’s special education needs and that it provides education instruction specifically designed to meet the unique needs of a handicapped child. In addition, the 2021 IEP and 2022 IEP indicate that the Student’s instructional/functional levels in math and reading improved by one grade level while attending the Unilateral Placement. Finally, the evidence indicates that the most recent assessment conducted by the District was the 2019 District Psychoeducational Evaluation, and there is no indication that the District attempted to evaluate the Student subsequently.
In concluding the second prong of the Burlington/Carter analysis, based on a preponderance of the evidence standard, I find that the Parent has met their burden of proof regarding the appropriateness of the Unilateral Placement. However, discrepancies regarding the Student’s program do not support an award of direct payment for the full amount of the tuition.
The third prong of the Burlington/Carter analysis considers the equities of the case, which I do not find to be determinative in this case.
Regarding the tuition amount, the Unilateral Placement Representative testified that the 20% price increase in tuition as compared to the prior school year was due to inflation and increases in costs. However there was no evidence presented to substantiate such a significant increase. The Tuition Affirmation indicates that the school year runs from September 7, 2022 – June 14, 2023, and the Contract indicates a monthly tuition amount. However there is no adjustment to the monthly tuition amount for the three missing weeks of instruction in September and June.
Regarding religious instruction at the Unilateral Placement, I find that the Parent’s contention that $5,000, or five percent, of the tuition is attributable to religious instruction is not sufficiently supported by the hearing record. There are certain discrepancies in this regard. The Curriculum Schedule includes “Hebrew” Monday through Thursday, but not Friday. (Ex. E-1) By comparison, the Program Description states that “our students pray every day” and that religion is incorporated into the music program. (Ex. C-5) The Unilateral Placement’s testimony that the music and Hebrew components are separate was not convincing. In addition, the Mother testified that the Student receives one hour per day of religious instruction, which would be greater than five percent.
In addition, the Parent Representative stated that any award of tuition should be reduced by $5,000, or five percent. However five percent of the tuition is greater than $5,000. In addition, the Parent Representative stated that the five percent threshold was an approximation.
In concluding the Burlington/Carter analysis, I find that the Student was not provided a FAPE for the School Year, that the Unilateral Placement was appropriate, but that discrepancies relating to the Student’s educational program and Contract at the Unilateral Placement do not support an award of direct payment for the full amount of the tuition.
ORDER
Based upon the foregoing, it is hereby: 1) ORDERED THAT, the Student was not provided a FAPE for the School Year; and 2) ORDERED THAT, the District shall pay the Unilateral Placement for Seventy Percent (70%) of the Student’s tuition for the School Year;
SO ORDERED
DATED: September 29, 2023
/s/ Sebastian A. Weiss
Sebastian A. Weiss
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. PARENT EVIDENCE: Ex. Document Date(s) Pages A Request for Due Process Proceeding and Notice of Appearance 10/21/2022 9 B WITHDRAWN C Student Contract, Program Description, and Curriculum 8/17/2022 14 D Affirmations regarding Tuition Breakdown and Payments 5/4/2023 2 E Curriculum Schedule 2022-2023 1 F Student Attendance 2022-2023 1 G Assessments, Plans, and Reports Various 30 H Ten Day Notice 8/16/2022 2
DISTRICT EVIDENCE:
# DOCUMENT DESCRIPTION DATE PAGE
1. Psychoeducational Evaluation Report Unilateral Placement – 2020-2021 2 28 Reports, Plans & Assessments Unilateral Placement – 2021-2022 3 40 Reports, Plans & Assessments 06/13/2019 11 pages DOE
4. Individualized Education Program (IEP) 12/14/2021 20 pages DOE
5. IEP Team Conference Minutes Unilateral Placement – Reports, Plans & 2022-2023 6 36 Assessments 12/23/2021 3 pages DOE
7. IEP Team Conference Minutes 10/31/2022 3 pages DOE
8. Individualized Education Program (IEP) 10/31/2022 23 pages DOE
Footnotes
[1] Exhibits, or “Ex.”, shall be referred to as follows: “P” for Parent Exhibits, which are otherwise indicated alphabetically; “D” for District Exhibits, which are otherwise indicated numerically; “JE” for Joint Exhibits; “CB” for closing brief; “IHO” for any Impartial Hearing Officer’s exhibits; and “T” for the hearing transcript, accompanied by the applicable hearing date.
[30] minutes, Separate Location; The 2021 IEP Placement Recommendation is NYC DOE School Non-Specialized. (Ex. 4-18) The Instructional/Functional Levels indicated on the 2021 IEP for both reading and math is [REDACTED] grade. (Ex. 4-18) On August 16, 2022, the Mother submitted a letter to the District via fax with the heading “Ten Day Notice”, which states that the Parent has not received a school placement for the
[40] minutes, Separate Location; The 2022 IEP Placement Recommendation is NYC DOE School Non-Specialized. (Ex. 8-20) The Instructional/Functional Levels on the 2022 IEP for both reading and math is [REDACTED] grade. (Ex. 8-20) On August 17, 2022, the Mother entered into a Student Contract with the Unilateral Placement (“Contract”). (Ex. C) Paragraph 2 of the Contract states that the Tuition is $10,000 per month. (Ex. C-1) Paragraph 2 of the Contract also states that the Tuition for September 2022 to June 2023 is “$12,000 x 10 months = $120,000”. (Id) The Unilateral Placement Supervisor and Mother testified that the discrepancy in the monthly tuition amount was attributable to a typographical error. (T 122, 137)