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CASE NUMBER: 590440 - NYC: 241371
FINDINGS OF FACT AND DECISION
Case Number: 241371
Student’s Name: REDACTED
Date of Birth: REDACTED
District: REDACTED
Region: 09
Hearing Requested By: Parents
Dates of Hearing: January 13, 2023
February 14, 2023
March 16, 2023
April 24, 2023
May 23, 2023
June 8, 2023
Actual Record Close Date: August 1, 2023
Hearing Officer: Maria R. Dispenza, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 13, 2023
For the Student:
REDACTED Parent Attorney
For the Department of Education:
REDACTED DOE Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED FEBRUARY 14, 2023
For the Student:
REDACTED Parent Attorney
For the Department of Education:
REDACTED DOE Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 16, 2023
For the Student:
REDACTED Parent Attorney
For the Department of Education:
REDACTED DOE Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED APRIL 24, 2023
For the Student:
REDACTED Parent Attorney
For the Department of Education:
REDACTED DOE Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED MAY 23, 2023
For the Student:
REDACTED Parent Attorney
REDACTED Parent/Mother
REDACTED Parent/Father
For the Department of Education:
REDACTED DOE Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED JUNE 8, 2023
For the Student:
REDACTED Parent Attorney
REDACTED Parent/Mother
REDACTED Parent/Father
For the Department of Education:
REDACTED DOE Attorney
INTRODUCTION
On December 30, 2022, New York City Department of Education (DOE) appointed me to act as the impartial hearing officer (IHO) in a case brought under the Federal Individuals with Disabilities Education Act (IDEA) [20 USC §1415(f)(3)] (“IDEA”) by the parent (Parent) of REDACTED (REDACTED) for the school year 2022/23. The Parent requested the hearing by filing an impartial hearing request with the NYC Department of Education (DOE) on or about November 1, 2022. The DPC is carried under New York City (“NYC”) Case No: 241371. The impartial hearing was held over a series of dates, to complete the record on June 8, 2023. The timelines have also been extended to allow the parties opportunity to fully prepare, secure witnesses and obtain transcripts. The record officially closed on August 1, 2023. A list of persons who appeared at the hearing and the documents entered into evidence is annexed hereto.
BACKGROUND AND POSITIONS OF THE PARTIES
REDACTED is a student classified by the NYC DOE “Learning Disability” (Exhibit A). She is diagnosed with Attention Deficit/Hyper-Activity Disorder-Inattentive Type, Specific Learning Disorder with Impairment in Reading and Specific Learning Disorder with Impairment in Writing (Exhibits A and B). For the 2022/23 the CSE held an IEP meeting on March 29, 2022, ultimately recommending a 12:1 classroom. Parent expressed the program recommendation inadequate and upon receiving a school location letter and contacting same, were advised that the school did not offer the recommended 12:1 program. The Parent alleged additional procedural violations and substantive inadequacy and claimed the recommended program and placement amounted to a deprivation of a free and appropriate public education (FAPE) for the 2022/23 school year. The Parent alleges giving notice to the DOE of its failure to provide REDACTED with an appropriate program and placement and of her intent to unilaterally place REDACTED at a private placement and seek funding (Exhibit A). Subsequently, as a remedy for the DOE’s failure to provide REDACTED a FAPE, the Parent filed a DPC and now seeks reimbursement for REDACTED’s unilateral placement at the REDACTED (REDACTED) for the 2022/23 school year, along with the reimbursement cost for privately obtained Occupational Therapy services (OT) and funding for door-to-door special education transportation to and from the unilateral placement (Exhibits A and T @ 46-47).
In an effort to support their position, the parent submitted a documentary exhibit package consisting of eighteen pieces of evidence (Exhibits A-R), which included affidavit testimony of REDACTED, Committee on Special Education Liason for REDACTED (Exhibit Q), REDACTED, Occupational Therapist (Exhibit R) and REDACTED, REDACTED’s mother (Exhibit P).
At the hearing, the DOE conceded Prong I, did not present any witnesses or documentary evidence to defend against the FAPE allegation, waived its opening statement (T @ 29) and on the hearing date allocated to Parent stated it would be recommending the matter for settlement (T @ 38); however Parent opted to proceed to hearing (T @ 41-42). The DOE further opted only to briefly cross-examine REDACTED (T @ 40, 47-53).
FINDINGS OF FACT AND DECISION
The Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) was enacted with the primary purpose to ensure that students with disabilities have available to them a free and appropriate public education (FAPE) (20 U.S.C. § 1400[d][1][A]; see Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]; Bd. of Educ. v. Rowley, 458 S. Ct. 176, 179-81, 200-01 [1982]; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [2d Cir. 2006]). It is clear that the legislative intent of 20 US Code Section 1412 of the IDEA is to provide a FAPE to all children with disabilities so that these individuals may ultimately lead productive independent lives as adults, to the maximum extent possible (20 U.S.C. Sx 1400[d][1][A]; see Mrs. W v. Tirozzi, 832 F.2d 748 [2nd Cir. 1987]. A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (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). An IEP is designed as a "written statement" that addresses the educational needs of a child with a disability (20 U.S.C. § 1401[14]; 34 C.F.R. § 300.22; 8 NYCRR 200.1[y]). At the beginning of each school year, a school district is required to have an IEP in effect "for each child with a disability in its jurisdiction" (20 U.S.C. § 1414[d][2]; 34 C.F.R. § 300.323[a]; see also Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 194 [2d Cir. 2005] (finding the district fulfilled its legal obligations by providing the IEP before the first day of school). The student's recommended program must also be provided in the least restrictive environment (LRE) (34 C.F.R. § 300.114[a]; 8 NYCRR 200.6[A][1]). A FAPE is offered to a student when the board of education (a) complied with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. at 176, 206, 207 [1982]). The IDEA directs that, in general, a decision by an impartial hearing officer or state review officer must be made on substantive grounds based on a determination of whether or not the child received a FAPE (20 U.S.C. § 1415[f][3][E][i]). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a FAPE to the child, or (c) caused a deprivation of educational benefits to the child (20 U.S.C. § 1415[f][3][E][ii]; see 8 NYCRR 2005[j][4][ii]). The IDEA mandates that a student with a disability be provided with a FAPE tailored to meet his unique needs and one that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas Cty. Sch. Dist., 580 U.S. ___, 137 S.Ct.988, 999 (2017). A focus on the particular child is at the core of the IDEA. Endrew F., 137 S.Ct. at 999. Under 20 U.S.C. Section 1414(d)(3)(A), the IDEA mandates an IEP team to consider a child’s strengths, weaknesses and deficiencies, as well as the results of the most recent evaluations of the child together with developmental and functional needs of the child. In order to determine the student’s requirements and needs, the team must review and consider evaluations, assessment and information provided by the child’s parents, teachers and service providers and thereon determine the type of program required for the child. A board of education may be required to pay for educational services obtained for a child by the child's parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim. (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; see also Frank R. and Dianne R. v. Bd. of Educ. of Hyde Park,459 F.3d 356 [2d Cir. 2006], cert denied, Board of Educ. of Hyde Park Cent. School Dist. v. Frank R., 2007 WL 2982269 [Oct. 15, 2007].
The case at hand is a tuition reimbursement case and is therefore governed by the holding of the U.S. Supreme Court in Burlington School Comm. v. Dept of Education (471 U.S. 359 [1985]). That case set forth a three-prong test for determining if tuition reimbursement is warranted: (1) were the services offered by the school district inadequate or inappropriate; (2) where the services selected by the parents appropriate; and (3) do equitable considerations support the parents’ claim. Recently enacted state legislation puts the burden of proof for the first prong on the school district and for the second prong on the parent (Chap. 583 of Laws of 2007).
Prong I:
In the instant matter, the DOE bears the burden of presentation and persuasion in all allegations raised in the DPC. Herein, the DOE conceded Prong I, failed to present any witnesses or evidence and opted to briefly cross one of Parent’s witnesses. An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the child’s needs, establishes annual goals and short-term instructional objectives which are related to the child’s educational deficits, and provides for the use of appropriate special education services to address the child’s special education needs. Application of a Child with a Disability, Appeal No 93-12; Application of a Child with a Disability, Appeal No 93-9; Application of a Child with a Handicapping Condition, Appeal No 92-7; Matter of Handicapped Child, 22 Ed Dept Rep 487, March 11, 1983. The SRO has found that allegations that are left unchallenged are deemed as true “unless found to be inconsistent with the evidence in the record.” Application of a Student with a Disability, 01-044 (SRO March 27, 2002). The DOE’s silence at hearing has the effect of conceding every point alleged by the parent against the DOE unless it is inconsistent with the hearing record. Id.
Herein, the DOE conceded Prong I and therefore no further analysis is required.
Prong II:
Having determined that the DOE did not offer the student a FAPE for the 2022/23 school year, I now proceed to evaluating the appropriateness of the parents’ unilateral placement of the student at REDACTED along with the additional privately obtained OT services. The parent’s failure to select a program approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Florence County Sch Dist Four v. Carter 510 U.S. 7 [1993]). The private placement need not employ certified special education teachers, Carter, supra. The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of the unilateral placement: “No one factor is necessarily dispositive in determining whether parents’ unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction”. (Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).
In the case at hand, the DOE did not provide any witnesses to rationalize its recommended program and/or placement for REDACTED. The DOE cross-examination of parent witnesses did not generate a material challenge to parent assertions. Contrarily, the evidence and testimony presented by the parent supports that REDACTED and the additional OT services privately obtained were an appropriate placement and individualized to meet REDACTED’s needs and resulted in progress for the 2022/2023 school year.
Herein, I credit the evidence and testimony (Exhibits F, K, M and O-R) submitted by Parent and find it establishes that the placement at REDACTED was appropriate as it provided a program and services that were directly related to REDACTED’s needs and one in which she was able to make meaningful progress. I find the evidence to substantiate the program at REDACTED to offer a small supportive environment with small group instruction and a low student-teacher ratio, available 1:1 tutorial services, utilization of Orton-Gillingham principles and modifications and supports required by REDACTED to make progress. Although related services are not provided, REDACTED testified that REDACTED addressed both the language based difficulties and occupational needs of REDACTED through their instructional program as he detailed the methods utilized in the classroom throughout the day (T @ 51-52).
Further, I credit the testimony of REDACTED, Occupational Therapist who attested to providing REDACTED with 13 sessions of OT services from September 15, 2022 through March 30, 2023 and that services were then terminated as REDACTED progressed and reached the goals that had been set for her (Exhibit R).
Based upon the foregoing, I therefore find that REDACTED was an appropriate placement for REDACTED for the 2022/23 school year. The record reflects REDACTED provided a rich supportive environment that correlated well with REDACTED, that the curriculum was specifically tailored to meet REDACTED’s needs and that she received a highly individualized instruction that enabled her to make appropriate progress. Based upon the foregoing, I find that the student made meaningful progress at REDACTED for the 2022/23 school year across the board: academically, socially and emotionally. The record reflects that REDACTED was a placement that was “specifically designed to meet the unique needs” of the student Frank G, supra and that REDACTED has made progress therein (Exhibits I-J). I further find that the Parent privately obtained OT services were appropriate.
Prong III:
Having found REDACTED an appropriate placement, I now consider equitable considerations, the final criterion for a reimbursement award. In weighing the equities, “the critical consideration, as the Court sees it, is whether they have cooperated in good faith to attempt to develop an IEP to the maximum extent possible, Schaffer, supra. There is nothing in the record to show that the parents were anything other than cooperative. The DOE did not present any evidence or testimony regarding the equity considerations for the 2022/23 school year. All indications are that the Parent cooperated with the DOE and did not interfere in any way with the DOE’s obligation to provide a FAPE for the Student for the 2022/23 school year. REDACTED’s Parents timely put the DOE on notice of REDACTED’s unilateral placement and their intent to seek reimbursement (Exhibits D and E).
I find (1). that the DOE failed to offer the student a FAPE for the 2022/23 school year, (2). that the unilateral placement of the student at REDACTED was appropriate (3). that the program at REDACTED was “reasonably calculated” to provide REDACTED with meaningful educational benefits; (4). that the privately obtained Occupational Therapy services were appropriate; and (5). that equitable considerations weighed in favor of the parents’ request for reimbursement for all costs associated with the placement of the student at REDACTED for the 2022/23 school year and reimbursement of privately obtained Occupational Therapy services.
Based upon the foregoing,
ORDER
1. It is hereby ordered that within thirty (30) days of receipt of this Order, the Department of Education shall directly fund/reimburse the full cost of the student's tuition at the REDACTED for the 2022/23 school year in the amount of $68,575.00; and
2. It is hereby ordered that within thirty (30) days of receipt of this Order, the Department of Education shall directly fund/reimburse the cost of the student's Occupational Therapy services obtained by the Parent for the 2022/23 school year in the amount of $2,600.00;
3. The DOE shall provide door-to-door special education transportation.
All payments shall be supported by the presentation of appropriate documentation.
Dated: August 8, 2023
Maria R. Dispenza
_________________________
MARIA R. DISPENZA, ESQ.
Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
PLEASE TAKE NOTICE
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.
DOCUMENTATION ENTERED INTO THE RECORD ON JUNE 8, 2023
Parent:
A. Due Process Complaint, 11/08/22 -9pp
B. Neuropsych Evaluation, 12/19/20 -28pp
C. REDACTED School Enrollment Contract, 05/11/22 -4pp
D. TDN, 08/23/22 -2pp
E. TDN Email Receipt, 08/23/22 -1pp
F. REDACTED Quarter 1 Progress Report, Undated -6pp
G. 22/23 YTD Attendance Report, 02/10/23 -3pp
H. WITHDRAWN
I. 22/23 Class Schedule, Undated – 1pp
J. 22/23 REDACTED Tuition Affidavit, 05/15/23 -1pp
K. REDACTED Quarter 2 Progress Report, Undated – 4pp
L. POPs – REDACTED School Tuition, 07/15/23-04/17/23 -20pp
M. POPs Functional REDACTED, 10/26/22 -04/20/23 -12pp
N. REDACTED School Program Description, Undated -1pp
O. REDACTED Quarter 3 Progress Report, Undated -6pp
P. Testimony Affidavit: REDACTED, 05/26/23 -10pp
Q. Testimony Affidavit: REDACTED, 05/31/23 -15pp
R. Testimony Affidavit: REDACTED, 05/31/23 -3pp