Impartial Hearing Decision

FINDING OF FACT AND DECISION AND ORDER

Case Number:241469

District: redacted

Hearing Requested By: Parent

Date of Hearings: June 15, 2023

Record Closed Date: July 26, 2023

Hearing Officer: Diane Ciccone

I. Introduction

On November 8, 2022, I was appointed to conduct an impartial hearing pursuant to 20 U.S.C. §1415, regarding the special education program of STUDENT; the hearing commenced on June 15, 2023. Lists of persons in attendance and documents received in evidence are appended to the record.

II. Background

STUDENT is redacted and classified with a health impairment. The parent alleges that the Department of Education failed to provide the student with FAPE for the 22/23 school year. The STUDENT attends a PRIVATE SCHOOL. The PARENT requested tuition payment for the 22/23 school year.

III. The Department’s Case

At the June 15, 2023, hearing, the DOE requested an adjournment of the hearing which was denied. The DOE advised that it was neither conceding nor defending its obligation to provide a FAPE for the 22/23 school year. The DOE did not submit any evidence, witnesses and did limited cross-examination of the PARENT’S witness. The DOE’s application to submit a rebuttal witness at the conclusion of the PARENT’s case was also denied.

IV. The Parent’s Case

In the due process complaint, the parent requests a finding of a denial of FAPE for the 22/23 and direct funding for the tuition for the 22/23 school year. The parent submitted exhibits (A-I) and made available two witnesses who provided affidavit testimony for cross-examination, the director of the PRIVATE SCHOOL and the parent. The witness testified on cross-examination knew the STUDENT since the end of the previous school year. She testified that 9.5% of school day will be Judaic (Tr. pg.34). She testified when a student is admitted, they review the IEP, do an assessment, speak with the school they are coming from their teacher, and meet with the student in person(Tr. pg.37,38). In her affidavit (Exh. H) she described the school as a small language based self-contained classrooms for students who typically require significant social/emotional support. The STUDENT is in a 6:1:1:2 classroom who receives speech therapy 2x30 1:1, 1x30 group; OT 2x30 1:1 and PT 3x30 1:1. She also reviewed the IEP with a recommendation of a 12:1:1 class size and found it inappropriate.

The Semester report card for the 22/23 schoolyear (Exh. C) showed the STUDENT has made progress in all areas.

The parent submitted an affidavit (Exh. I) and testified on cross-examination. She testified that she never received a school location letter from the DOE for the 2022/2023 school year (Tr. p. 44).

V. Findings of Fact and Conclusions of Law

A central purpose of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. §1400[d][1][A]; Bd. of Educ. v. Rowley, 458 U.S. 176, 179-81, 200-01 [1982]; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [2d Cir. 2006]). “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. The crafting of an appropriate educational program for a specific child is thus a “fact-intensive exercise” based on the particular child’s individual needs. Id.

The legal standard for funding cases such as this one is well established, based upon School Committee of Burlington v. Department of Education of Massachusetts, 471 U.S. 359, 1985. A District may be required to reimburse parents for their expenditures for private special educational services obtained for a student by the parents, if three prongs are met: (1) the district fails to meet its burden in showing that the IEP was appropriate, (2) the parents demonstrate the services they selected were appropriate, and (3) equitable considerations support the parent’s claim. Sch. Comm. of Burlington v. Dept. of Educ., 471 U.S. 359, 370 (1985). With regard to the burden of proof in New York State, the school district has the burden of proof, including the burden of persuasion, in any impartial special education due process hearing. The exception to this is that “a parent or person in parental relation seeking tuition reimbursement for a unilateral placement shall have the burden of persuasion and burden of production on the appropriateness of such placement.” New York Education Law Section 4404.

Here, the Department, in failing to defend FAPE, failed to meet its Prong I burden. In regards, to Prong II, I find that the STUDENT’s unilateral placement was appropriate and met the Student’s individual needs. In regards, to Prong III, I find that the Parent provided timely notice of the intention to seek tuition payment, and there are no other equitable issues that would limit the Parent’s right to tuition payment.

In Application of the Board of Education of the City School District of the City of New York, Appeal No. 96-14, the State Review Officer stated that tuition reimbursement to parents of a student who attends a school which offers religious instruction is not precluded by the First Amendment’s Establishment Clause. The decision relies on Zobrest v. Catalina Foothills School District, 113 S.Ct. 2462 (1993), which held that “Government programs that neutrally provide benefits to a broad class of citizens defined without reference to religion are not readily subject to an Establishment Clause challenge just because sectarian institutions may also receive an attenuated benefit.” The IDEA has the clear secular purpose of ensuring that all children with disabilities are offered a free appropriate public education, and that Burlington and Carter provide for the remedy of tuition reimbursement under IDEA; this remedy should be available to all parents who meet its criteria. “Tuition reimbursement does not involve the imprimatur of State approval upon the school selected by the parents, nor does it have as its primary effect the advancement of religion. Tuition reimbursement does not create a financial incentive for children to undertake religious education. It simply makes parents whole, by reimbursing them for expenditures which they would not have made, if their boards of education had offered their children the appropriate educational placements.” I find that PRIVATE SCHOOL’s 9.5% per day of Judaic study does not preclude an award of tuition reimbursement.

I find the DOE failed to provide the STUDENT with FAPE for the 22/23 school year.

I find the placement at the STUDENT’s 22/23 PRIVATE SCHOOL was appropriate.

I find that the STUDENT is entitled to direct funding to the school for the tuition for the 22/23 school year.

VI. Order

IT IS THEREFORE ORDERED THAT:

1). The DOE is pay for the tuition for the 22/23 school year at the PRIVATE SCHOOL.

Diane Ciccone, Esq. IHO

Diane Ciccone, Esq. IHO

Dated: July 26, 2023

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.

Persons attending the June 15, 2023, hearing:

For the DOE:

REDACTED

For the Parents:

REDACTED

Exhibits

None

REDACTED