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CASE NUMBER: 590819 - NYC: 241729
FINDINGS OF FACT AND DECISION
Student’s Name [1]: [REDACTED] (“Student”)
Date of Birth: [REDACTED]
School District: [REDACTED]
Hearing Requested by: [REDACTED] (“Parents”)
Request Date/Date Complaint Filed: November 7, 2022
Dates of Hearing: May 12, 2023 and May 31, 2023
Actual Record Closed Date: June 6, 2023
Date of Decision: June 17, 2023
Date of Distribution if Different than Decision Date:
Hearing Officer: Lisa S. Rusk, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
MAY 12, 2023
For the Student:
[REDACTED], Attorney
[REDACTED], Parent Student
[REDACTED], Parent Student
For the Department of Education:
[REDACTED], District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
MAY 31, 2023
For the Student:
[REDACTED], Attorney
[REDACTED], Parent Student
[REDACTED], Parent Student
For the Department of Education:
[REDACTED], District Representative
INTRODUCTION AND PROCEDURAL HISTORY
This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parents’ Due Process Complaint (“DPC"), dated November 7, 2022. (Ex. P-A) [2]. The record does not contain any evidence of a response by the [REDACTED] (hereinafter referred to as “the District”). This IHO was appointed on January 5, 2023. A pre-hearing conference was held on January 12, 2023. [REDACTED] appeared on behalf of the Parents. No one appeared on behalf of the District. At the request of the Parents, a status conference was held on February 7, 2023 to give the Parents an opportunity to pursue settlement with the District. On February 7, 2023, [REDACTED] appeared on behalf of the Parents, and [REDACTED] appeared on behalf of the District. Both parties requested another status conference. Status conferences were held on March 6, 2023, March 21, 2023 and April 17, 2023, as the Parents attempted to resolve the case with the District. No District representative appeared at the last two conferences. The hearing was scheduled to commence on May 12, 2023 with the District’s case. [REDACTED] appeared on behalf of the District and indicated the District did not intend to put on a case and waived an opening statement (T:44,49). [REDACTED] made an opening statement on behalf of the Parents.
The hearing continued on May 31, 2023. The Parents entered Exhibits A-K.[3] into the record without objection. The Student’s mother testified, and presented an affidavit of testimony from the CSE Coordinator from the [REDACTED] (hereinafter referred to as “the private school”). The District did not cross-examine the Parents’ witnesses (T:64,75).
Five extensions of the compliance date were granted at the request of the parties. The District waived a closing statement. The District confirmed that it was not presenting a case and not challenging the Parent’s case (T:79). The Parents made a closing statement on the record in support of the reimbursement of the tuition paid to the private school (T:79-87). The record was closed on June 6, 2023 (T:87).
JURISDICTION
The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.
BACKGROUND
The Student was REDACTED years old and in the fifth grade at the time of the filing of the DPC. He was classified by the District’s Committee on Special Education (“CSE”) as a student with a learning disability. A CSE meeting was held on October 10, 2020, and a 12:1 class in a NYSED approved non-public day school was recommended. The Parents agreed with the recommendation. As of the filing of the DPC, the CSE had not reconvened, and the District had not located a placement for the Student for the 2022-23 school year (Ex. P-A).
ISSUES
The Parents allege in the DPC that the District failed to offer the Student a placement for the 2022-23 school year. The Parents seek funding for their unilateral placement of the Student at the private school for the 2022-23 school year and door-to-door special education bussing. [4]
FINDINGS OF FACT
The Student’s mother described the Student as a smart, funny, articulate child who likes to play with Legos, swim, ride his bike and roller skate. He has difficulty reading, which has made him very self-conscious and affected his friendships. The Parents first noticed his challenges as a toddler, and he received speech therapy through Early Intervention. He attended kindergarten in the public school and had difficulties with reading, recognizing sight words, counting and writing (T:66-68). He began to struggle more and more and was moved to the private school by the Parents in March of third grade (T:68,77). The Parents obtained a neuropsychological evaluation of the Student in August of 2020 (T:69, Ex. P-B). He has been diagnosed with Attention Deficit/Hyperactivity Disorder (ADHD), specific learning disorder with impairment in reading, specific learning disorder with impairment in written expression, specific learning disorder with impairment in mathematics and adjustment disorder (Ex. P-B-13).
The Parent testified that after transferring to the private school, the transformation was great. A positive change in his whole demeanor was noticeable (T:71-72). The Parent testified that he has made progress at the private school. His frustration has decreased, and he can now read chapter books. He’s learned how to attack word problems in math. Overall, he is working more independently (T:72-73). Emotionally, he is more regulated and has made friendships (T:73). [REDACTED] (hereinafter referred to as “the CSE Coordinator”) testified via affidavit that he is in his seventh year of working at the private school (Ex. P-K-1). The CSE Coordinator is familiar with the Student in that he has observed him in classes formally and informally, reviewed his neuropsychological evaluation, reviewed his private school reports and discussed his performance with his teachers. The Student struggles with attention, executive functioning skills, working memory and processing. Academically, he struggles in reading, writing and math (Ex. P-K-2).
The private school provides specific instruction to address his executive functioning skills and reading, writing and math challenges (Ex. P-K-2-3). Over the course of the school year, he has demonstrated progress in executive functioning, academic skills and socially and emotionally. The progress report indicated he received occupational therapy one time per week and speech therapy one time per week in the classroom to address his related services needs (Ex. P-K-3-4).
The Student’s school day was 8:15 am to 3:00 pm Monday through Friday. His classes included choice, morning meeting, read aloud, reading, science, science lab, writing, social studies, myself and community, healthy choices, physical education, current events, math and art/music (Ex. P-I). His mid-year report documented his goals, instructional techniques and materials and the progress the Student has made (Ex. P-F).
The Parents sent notice to the District that a CSE meeting was not held for the 2022-23 school year (Ex. P-D). They did not receive a response. The Parents have paid the tuition in full for this school year (T:75, Ex. P-G).
CONCLUSIONS OF LAW
The Individuals with Disabilities Education Act (IDEA) provides that children with disabilities are entitled to a FAPE (20 U.S.C. § 1400 [d][1][A]). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written IEP (34 C.F.R. § 300.13). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances” Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988 (2017). If a procedural violation has occurred, relief is warranted only if the procedural violation affected the student's right to a FAPE. 8 NYCRR §200.5[4]; J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 (2d Cir. 2000).
In New York State, school districts have the burden of proof, including the burden of persuasion and burden of production in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement or payment for services for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement (NYS Educ. Law § 4404(1)(c)). It is well settled that 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]), 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]).(Application of a Child with a Disability, SRO Appeal No. 22-154).
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 (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School Dist. Four v. Carter, 510 US 7 [1993]). If the District is unable to prove that it met its burden under Prong I of the three prong Burlington/Carter test, the parent in order to meet his or her burden must establish by a preponderance of the evidence, that the unilateral placement provided “educational instruction specifically designed to meet the unique needs of the student” (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 [2d. Cir. 2007]. However, the private school placement “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements” (Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d. Cr. 2006]. The private placement need not provide certified special education teachers or an IEP. 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" Gagliardo, 489 F.3d at 115):
“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).
Finally, under the third prong of the Burlington/Carter test, equitable factors must weigh in the favor of the parents in order to qualify for an award of tuition reimbursement.
ANALYSIS
The District admittedly did not present a case to prove that it met its obligation to provide the Student with a FAPE, nor did it challenge the Parents’ case (T:79). I find the District has failed to meet its burden under Prong I of the Burlington/Carter test.
Turning to the private school program selected by the Parents, the Parents argue that the selected program appropriately addressed the Student’s needs and that they have met their burden under Prong II of the Burlington/Carter test. The District does not dispute this.
Based upon a thorough review of the testimony and evidence, I find the Parents met their burden that the private school provided the Student with specific individualized instruction and services to meet his unique special education needs during the 2022-23 school year. The uncontroverted testimony and evidence as set forth above reflects that the private school provided him with specific strategies to address his difficulties with executive functioning, reading, writing and math. He made meaningful progress during the school year. I find the Parents have met their burden under Prong II of the Burlington/Carter test.
With regard to the equities, there is no claim by the District and no evidence in the record that the Parents thwarted the process in any way that would have otherwise prevented the CSE from making a defensible recommendation for the 2022-23 school year. The Parents gave the District timely notice of their dissatisfaction with the District’s actions and their intention to unilaterally place the Student at the private school and seek reimbursement (Ex. P-D). As such, the equitable considerations weigh in favor of the Parents, and the Parents are entitled to an award of tuition reimbursement.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
1. ORDERED that the District shall within thirty (30) days of the date of this decision reimburse the Parents for tuition paid to the private school for the 2022-23 school year.
SO ORDERED.
DATED: June 17, 2023
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.
APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD
PARENT EXHIBITS
A. NUMBER DATE DOCUMENT No. of Pages Due Process Complaint 11/07/2022 8 pages
B. Neuro Psych Evaluation 08/19/2020 26 pages
C. 22-23 [REDACTED] Enrollment Contract 02/18/2022 6 pages
D. Ten Day Notice 08/23/2022 1 page
E. TDN Email Receipt 08/23/2022 1 page
F. 22-23 [REDACTED] Mid-Year Report 01/31/2023 17 pages
G. 22-23 [REDACTED] Tuition Affidavit 04/20/2023 1 page
H. 22-23 Tuition POPs 02/22/2022 22 pages
I. 22-23 Class Schedule Undated 1 page
J. [REDACTED] Program Description Undated 2 pages
K. Testimony Affidavit: [REDACTED] 5/22/2023 5 pages
Footnotes
[1] Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.
[2] Exhibits shall be referred to as follows: “P” for Parents’ Exhibit; “D” for District’s or Department’s Exhibits; and “IHO” for Impartial Hearing Officer’s Exhibits. Exhibits will be followed by the exhibit number and page numbers as needed and appropriate.
[3] A more detailed list of the admitted exhibits is attached as Appendix B, “Documentation Entered Into the Record,” to this decision.
[4] The Parents withdrew the claim for transportation (T:78).