New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 241659

Student’s Name: REDACTED

Date of Birth: REDACTED

District: REDACTED

Hearing Requested By: Parent

Date of Hearing: February 16, 2023

March 16, 2023

April 26, 2023

May 3, 2023

Actual Record Closed Date: June 20, 2023

Hearing Officer: Judith Schneider, Esq.

An Impartial Hearing for the New York City Department of Education (“DOE” or “the district”) Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York, pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C. §1415, and Article 89 of the Education Law of the State of New York, regarding the special education program of [REDACTED] (“the student”) was conducted by me remotely via teleconference

Procedural History

The proceeding was initiated at the request of the parents (hereinafter “the parent”) by correspondence dated November 4, 2022 (Ex. A) I was appointed Impartial Hearing Officer on January 4, 2023. A prehearing conference was conducted on January 13, 2023.

Parties moved to extend the compliance date on various occasions for settlement related activities, anticipated testimony, the scheduling of witnesses and submission of evidence, and receipt and consideration of the transcripts and closing statements. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of this matter. Accordingly, the requests for extensions of the compliance dates were granted.

The current compliance date is July 17, 2023. The record closed on June 20, 2023.

Positions of the Parties

The parent asserts that the district failed to provide a timely, substantively and procedurally adequate IEP and an appropriate placement for the 2022-2023 school year (“SY”). The parent unilaterally placed the student in [REDACTED] (“the School”), claims that was an appropriate placement and seeks district funding through reimbursement. The parent asserts that equitable considerations do not provide a basis for denial or limitation of district funding. (Ex. I)

In its opening statement the district asserted that it provided a FAPE for the 2022-2023 SY. Further, it claimed that the unilateral placement was too restrictive, and that the parent’s burden would not be met. It also asserted that equities favored the district. (T50) The district did not submit a closing statement although an opportunity to do so was provided.

Cases Presented

Both parties submitted documents for admission into evidence. A list of documents in the record is appended.

The district presented no witnesses. The parent presented the testimony of: the Head of the School (“the Head”); the student’s father (“the parent”).

Findings of Fact and Conclusions of Law

A Initial Factual Findings

Credible evidence establishes the following:

The student is a 2^nd grader although the School is ungraded, is diagnosed with Autism Spectrum Disorder and has the Autism disability classification. (Exs. I, 1) A Neuropsychological Evaluation conducted in February-March 2021 reported that he “demonstrate[d] poorly developed skills across most areas of functioning with overall abilities in the very low range.” Difficulties with attention, emotional volatility and social reciprocity were noted. Various program recommendations were made. (Exs. I, S) See also Ex. 1 and T69-72, 84)

The CSE convened on January 1, 2022 and the student’s parents participated as did several School staff members. (Exs. 1, 2) It recommended a 6:1:1 12-month program with Occupational Therapy (“OT”), Speech Language Therapy (“SLT”), Physical Therapy (“PT”) and Parent Training and Counseling (“PTAC”) as well as specified Assistive Technology (“AT”).( Exs. 1, 3) Both the parents and School staff expressed concerns at the review. (Ex. 1) Thereafter a placement was proposed by the district and considered by the parent. (Exs. 3, H)

On May 10, 2022, a contract with the School was executed for its 12-month program commencing July 2022 at a tuition rate of $166,050 which included related services Exs. K, L) The contract provided that the parent would be released upon student enrollment in a public school or a state-approved non-public school. (Ex. K)

By letters dated June 13, 2022 and August 15, 2022, the district was informed that the student would be placed in the School and district funding sought unless an appropriate program and placement were provided. (Exs. C, D, E, F) The CSE did not reconvene in response to those requests.

By letter dated November 5, 2022, the district was informed about specific parent concerns about the recommended placement and the reason for its rejection. (Ex. H)

B Conclusions

The legal standard applicable to a request for reimbursement for educational services is well established. Reimbursement is granted if: (1) the services offered by the Board of Education are inadequate or inappropriate (Prong 1); (2) the services selected by the parent are appropriate (Prong 2); and (3) equitable considerations support the parent's claim (Prong 3). Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Department of Educ. of Mass., 471 U.S. 359 (1985). In New York State the DOE bears the burden of proof with regard to Prong 1 and Prong 3 and the parent bears the burden of proof with regard to Prong 2. Educ. Law 4404[1][c]

Prong 1

In this matter, the district submitted various documents including an IEP in support its FAPE claim. However, an IEP does not on its own without testimony to explain its appropriateness establish that a FAPE has been provided. See e.g. R.E. v. N.Y.C. Dep’t of Educ., 694 F. 3d 167, 185-186 (2d Cir. 2012); L.O. v. N.Y.C. Dep’t of Educ., 822 F2d 95,111 (2d Cir. 2016) No witnesses have been presented by the district. Further, I note that allegations left unchallenged are deemed true “unless found to be inconsistent with the evidence in the record.” See Appeal No. 01-044; see also Appeal No. 12-00. Accordingly, I find that the district has not met its burden to establish that it provided a FAPE for the 2022-2023 SY.

Prong 2

When a public school system has failed to provide FAPE, the program and services chosen by the parent are “proper under the Act” if the education provided is “reasonably calculated to enable the child to receive educational benefits.” Carter, 510 U.S. at 14. The parents bear the burden of proof with regard to the services obtained by the parents for the student. However, parents are not barred from reimbursement if their program does not meet the IDEA definition of a FAPE. See 20 U.S.C. §1401(9), Frank G. v. Bd. of Educ. of Hyde Park., 459 F. 3d 356 (2^nd Cir. 2006). It is not required that the provider of the services be State approved to provide instruction to children with disabilities. Carter, 510 U.S. at 10. The student need not be the least restrictive environment. Frank G, 459 F. 3d at 364.. “Ultimately the issue turns on whether a placement…is ‘reasonably calculated to enable the child to receive educational benefits.’ [internal citations omitted] …”, Frank G, 459 F. 3d at 130. No one factor is necessarily dispositive in determining that. Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982). Parents 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. Id. at 364-365. See also Gagliardo v. Arlington Cent. Sch. Dist., 489 F 3d. 105, 115 (2d Cir. 2007). A finding of progress is not required for a determination that a student’s unilateral placement is adequate. Scarsdale Union Free Sch. Dist. V. R.C., 2013 WL 563322, at *9-*10 [S.D.N.Y. Feb. 4, 2013]; see also Frank G., 459 F. 3d at 364. However, a finding of progress is, nevertheless, a relevant factor to be considered. Gagliardo, 489 F.3d at 115. However, the program should be reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances. Endrew F. v. Douglas County School District, 580 U.S. ___ (2017), 2017 WL 1066260 (March 22, 2017). Although the restrictiveness of a parental placement may be considered as a factor in determining entitlement to an award of tuition reimbursement, parents are not as strictly held to the standard of placement in the LRE as are school districts. C.L. v. Scarsdale UFSD,744 F. 3d 826, 830, 836-37 (2d Cir. 2014); see Carter, 510 U.S. at 14-15; M.S., 231F.3d at 105 and “the totality of the circumstances” must be considered in determining the appropriateness of the unilateral placement, Frank G., 459 F. 3d at 64.

Credible and uncontroverted testimony of the witnesses, supported by documentary evidence, established substantial academic, related service and social/emotional special education needs and included his diagnosis and the basis for his disability classification, all known to the School. (Exs. I, 1; T69-72, 84). Further, the evidence is persuasive that the placement appropriately addressed those needs by providing a program which included, among other things, a small class, extensive 1:1 attention, development of an FBA and BIP to address behavioral needs, a sensory diet, necessary related services, appropriate curricula (which adhered to the NYS Common Core curriculum) and support, appropriate assessments, appropriate staffing, and collaboration within The School and with the parents. (Ex. J, M, N, O, P, Q, S; T66-68, 70, 74-75, 81-82, 85-86, 88-90, 94-95, 105-106) The program is consistent with the recommendations of the Neuropsychological Evaluation. (Ex. I) Further, the evidence shows that the student has progressed. (Exs. R, S, T; T77-81, 130-132)

I note that the district has asserted no objection or claim with regard to the appropriateness of the placement but for the unsupported assertion that the program was too restrictive. (T50) With regard to that claim I note that it is well established that although the restrictiveness of a parental placement may be considered as a factor in determining entitlement to an award of tuition reimbursement, as discussed above parents are not as strictly held to the standard of placement in the LRE as are school districts.

I find that the placement provided the student with educational instruction that was specifically designed and reasonably calculated to meet the student’s unique special education needs, supported by such services as were necessary to permit the student to benefit from instruction and that therefore the parental burden has been met.

Prong 3

The determination of whether equitable factors support a parent’s claim for tuition reimbursement hinges, in large part, on whether or not a parent cooperated with the DOE and CSE. See generally Burlington, 471 U.S. 359; Carter, 510 U.S. 7; see also Mr. & Mrs. A ex rel. D.A. v. N.Y.C. Dep’t of Edu., 769 F. Supp. 2d 403, 430 (S.D.N.Y. 2011); see also N.R. ex rel. T.R. v. Dep’t of Educ. of City Sch. Distr. Of N.Y., No. 07 Civ. 9648, 2009 WL 874061, at *14 (S.D.N.Y. Mar. 31, 2009). It is well established that a parent’s subjective intent, or preference for a nonpublic educational setting, is not relevant to a determination of the equities, even if, in seeking tuition funding, the parent has, as “[p]resumably, nearly all parents who make unilateral placement... and then seek tuition reimbursement, act[ed] at least in part out of a hope, belief, or expectation that the school district [would] ultimately be forced to fund [the] placement,” Mr. & Mrs. A. ex rel. D.A., 769 F. Supp. 2d at 430; see also N.R. ex rel. T.R. 2009 WL 874061, at *14. See also C.L. v. Scarsdale UFSD, 744 F. 3d 826 (2d Cir. 2014) (“[Parents] pursuit of a private placement was not a basis for denying their tuition reimbursement, even assuming…that the parents never intended to keep [the student] in public school.”) The district has the burden of proof.

The district has presented no evidence controverting the credible evidence presented of parental cooperation with the CSE. I find that the district has established no basis for denial or limitation of tuition in this matter.

ORDER

It is hereby ordered that:

The district shall within 45 days of issuance of this order reimburse the parent for tuition paid to the School for the 2022-2023 SY (12-month program) in an amount not to exceed $166,050. The district may require evidence of parent payments made and that the School’s charges were its usual and customary rate for the services provided.

Dated: July 1, 2023

_________/s/_____________

JUDITH SCHNEIDER, 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

District

1 01/18/2022 IEP 33 pgs.

2 01/18/2022 IEP Attendance Page 1pg.

3 06/23/2022 Prior Written Notice / School Location Letter 3pgs.

4 11/19/2021 Progress Report (utilized in IEP) 14 pgs.

5 01/14/2021 FBA and BIP (utilized in IEP) 18pgs.

6 11/4/2021 Assistive Tech Center Memorandum 1pg.

7 11/4/2021 Assistive Tech Center Outright Recommendation 2pgs.

8 11/4/2021 Assistive Tech Center Attendance Page 1pg.

Parent

A Processed Demand for Due Process, 11/04/2022 14 pgs.

B FOFD 12/22 SY #216556 22 pgs.

C 10 Day Notice Letter, 6/15/22 1 pg.

D Receipt of 10 Day Notice Letter, 8/15/22, 1 pg

E 10 Day Notice Letter, 8/15/22 2 pgs.

F Receipt of 10 Day Notice Letter, 8/15/22 1 pg.

G Email sending Neuropsychological Eval to DOE 2 pgs.

H Letter re: Rejecting Placement and Fax confirm., 11/05/22 2 pgs.

I Neuropsychological Eval., 3/6/2021, 5 pgs.

J School Program Description, Undated, 1 pg.

K School Enrollment Contract, 5/10/22, 18 pgs.

L School Tuition Affidavit, 3/21/23 2 pgs.

M School Fall Class Schedule, 2022-2023 6 pgs.

N Titus Winter Class Schedule 2022/2023 7 pgs.

O School FBA and BIP, 1/14/21 18 pgs.

P School FBA and BIP, 7/29/22 17 pgs.

Q School Sensory Diet, 2022-2023 2022/2023 4 pgs.

R School Progress Report, 11/19/21 14 pgs.

S School Progress Report, 11/18/2022 20 pgs.

T School Progress Report, 2/17/23 23 pgs.

U School Proof of Payment, Various dates 38 pgs.

V Resume of School Executive Director,, undated 2 pgs.

Impartial Hearing Officer

I Parent Post Closing Brief