New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 241912

Student's Name: [REDACTED]

School District: [REDACTED]

Hearing Requested By: Parent

Record Closed Date: September 14, 2023

Hearing Officer: Dora M. Lassinger

The student’s parent filed a request for an impartial hearing on November 8, 2022, alleging a denial of a Free Appropriate Public Education (“FAPE”) for the 2022-2023 school year; and requesting funding for her unilateral placement of the student at [REDACTED] (hereinafter “the private school”).^[1] I was designated to hear this matter on January 6, 2023.

The compliance date was extended while the parties pursued settlement negotiations. As the negotiations stalled, a hearing on the merits was held on September 11, 2023.

Department of Education (“DOE”) Position

The DOE did not present any evidence or argument at the hearing. It waived its “Prong I” argument”, thus conceding that it could not meet its burden of proving that it provided the student with a FAPE. (Tr. pp. 32, 36, 75).

Parent’s Position

The parent’s position is that the DOE failed to meet its burden of proof, in that did not provide the parent with an IEP or placement offer for the 2022-2023 school year; that the parental placement was appropriate, and that there are no equitable bars to reimbursement and direct funding. (Tr. pp. 36-47).

Evidence at Hearing

The student is classified with Autism. (Par. Ex. S). He received early intervention services, and attended public schools, in 12:1:1 classes for two years. (Tr. pp. 55-56). Afterward, he attended a state approved non-public school through eighth grade. (Tr. pp. 58-59).

Subsequently, he attended [REDACTED], another state approved non-public school, for two years; however, he did not perform well there academically or socially. (Tr. pp. 59-60). The parent located the private school with the assistance of an advocate; and he attended there during the 2021-2022 and 2022-2023 school years. (Tr. pp. 55, 64). She testified that the student has progressed there academically and socially. (Tr. p. 67).

An IEP meeting took place on April 14, 2021. The student was classified with Autism and recommended for placement in a non-public day school (12:1+3) with related services of Counseling, Parent Counseling and Training and Speech/Language Therapy (“SLT”) on a twelve-month basis. It was reported that his full-scale IQ was in the low borderline range; and that he was performing academically at a third-grade level for reading and a fifth-grade level for math. The parent participated in the meeting. (Par. Ex. S).

The parent believes she also participated in an IEP meeting in or about June 2022, with her advocate. (Tr. pp. 61, 71). The CSE recommended a public-school placement; however, the parent was never provided with a copy of the IEP or with a written offer of placement. (Tr. pp. 72-73).

The parent’s income consists of Supplemental Security income only. She is unable to pay the balance of the tuition owed and seek reimbursement. (Tr. pp. 65, 70) On June 20, 2022, the parent, through her attorneys, signed an enrollment contract for her son to attend the private school during the Summer of 2022, for a total cost of $5,600 ($3,200 for July and $2000 for August), with a deposit of $200.00. (Par. Ex. E).

On June 20, 2022, the parent, through her attorney, provided 10-day notice rejecting the proposed public-school placement, noting the DOE’s failure to provide an IEP or written placement offer; and providing notice of her intention to place the student at the private school and seek funding. (Par. Ex. B).

The parent signed an enrollment contract, dated August 15, 2022 for the student to attend the private school for the period from September 2022 through June 2023 for a total tuition of $75,500. (Par. Ex. D).

The Head of the private school testified he has a Master’s Degree in Social Work, and is a Licensed Clinical Social Worker. The private school serves 43 students with various disabilities (including dyslexia, nonverbal learning disabilities, and executive functioning difficulties) aged

17 to 21; providing intense skills remediation, and encouraging students to build independence, responsibility, self-awareness and self-advocacy. The program includes internships that provide students with work experience.

The student is diagnosed with Autism Spectrum Disorder and has significant attention deficits, and cognitive weaknesses in visual-spatial abilities and fluid reasoning. He struggles to advocate for himself. He suffers from anxiety, and needs a lot of encouragement as well as processing time, before sharing information. He benefited from executive functioning strategies with checklists, to do lists and reminders, and required a specialized setting with a small classroom, specific social emotional support and a focus on vocational training, which was provided at the private school.

The student had an internship at Lincoln Center in Manhattan, where he served as an Access Ambassador and worked in the office, using different software programs.

The student received one-to-one learning support twice per week for forty-five-minute sessions from a [REDACTED] Teacher who developed individualized goals for the student. including improving his social skills and executive functioning skills. The student progressed in his ability to self-reflect and acknowledge when his behavior and language were not appropriate to the situation; and to learn more appropriate behaviors. He also progressed in his social communication skills across settings. He progressed in his ability to organize and plan, by developing a plan to showcase his artwork. The student progressed in his self-advocacy goals as well.

Most of the teachers of core classes at the private school hold a Master’s degree in education or a related field. The core classes focused on developing life skills, by connecting learning to real world experience. In literacy and writing, the student progressed in his literacy goals, and was engaged in independent activities and group discussions. In math, he progressed in his calculations and problem-solving skills. (Par. Ex. Q).

The parent has made payments totaling $1,001 for the student’s tuition for the 2022/2023 school year ( $200 for the summer program; and $801 for the ten-month portion of the school year. (Par. Ex. Q at 11). The balance owed to the private school is $74,699.00 for the ten-month program and $5,400 for the summer program (for a total of $80,099). (Par. Ex. H, I)).

Findings of Fact, Conclusions of Law and Order

The school district bears the burden of proving the appropriateness of the recommended program. Education Law 4404(1). The school district must comply with the procedural requirements of the Individual with Disabilities Education Act. (IDEA), and the IEP developed through its CSE must be reasonably calculated to enable the student to receive meaningful educational benefits. (Board of Educ. v. Rowley, 458 U.S. 176, 192 [1982]. The instruction offered must be specially designed to meet the child’s unique needs through an individualized education program. Endrew F. v. Douglas County School District, 137 S. Ct. 988 (2017).

In these proceedings, the DOE conceded that it could not meet its burden of proving the appropriateness of its recommendations. The parent’s testimony that the student was not provided with an IEP or a placement was not contradicted. Therefore, the DOE failed to meet its burden of proving the appropriateness of its recommendations.

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 be Board of Education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. Forest Grove School District v. T.A., 557 U.S. 230 (2009); School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U. S. 359 (1985). The fact that the facility selected by the parents to provide special education services to the child is not approved as a school for children with disabilities does not preclude an award of reimbursement. Florence School District Four et al. v. Carter, 510 U.S. 7(1993). Appropriateness of Parental Placement;

To qualify for funding under the IDEA, the parents must demonstrate that the parental 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.” See Frank G. v. Bd. Of Educ. Of Hyde Park, 459 F. 3d 356, 365 (2d Cir. 2006) (citing Rowley). cert. denied, Board of Educ. Of Hyde Par, v. Frank G. 128 S. Ct. 436 (2007).

The record indicates that the educational program provided at the private school was specially designed to meet the student’s unique needs. The student received instruction in small classes and individualized instruction geared toward his weaknesses. The student’s program appropriately focused on life skills and workplace skills, including an internship program. The student progressed in his social communication, self-advocacy and organizational skills.

The record indicates that the CSE previously acknowledged the student’s need for twelve-month programming, which was provided at the private school.

Equitable Considerations

In determining whether equitable considerations support a request for reimbursement, the courts will consider whether the parents have cooperated with the school district throughout the process to ensure that their child receives a FAPE. Bettinger v. New York City Bd. of Educ., 49 IDELR 39 [S.D.N.Y. Nov. 20, 2007]. The Courts must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Florence County School District Four, et al v. Carter 510 U.S. 7 (1993); M.C. v. Voluntown, 226 F. 3d 60 (2d Cir. 2000).

Direct funding of tuition is an available remedy where equitable considerations favor an award of the costs of private school tuition; but the parents, though legally obligated to make tuition payments, have not done so due to a lack of financial resources. Application of a Student Suspected of Having a Disability, Appeal No. 15-038 (citing Mr. and Mrs. A. v. New York City Dep’t of Educ. 769 F. Supp. 2d 403 (S.D.N.Y. 2011); See Connors v. Mills, 34 F. Supp. 2d 794 (N.D.N.Y. 1998).

The record indicates that the parent participated in the June 2022 IEP meeting and provided notice of her disagreement with the proposed program; and her intention to unilaterally place the student and seek funding. The parent demonstrated that she is unable to pay the balance owed for her son’s tuition, due to her limited financial resources.

Therefore, equitable considerations support the parent’s request for reimbursement of the amount already paid ($1,001.00) and direct funding of the balance owed for the student’s 2022/2023 tuition ($80,099).

ORDER

For all of the foregoing reasons, it is hereby ordered that the DOE shall, within 20 days of this order:

1. Reimburse the parent $1,001.00 on account of the student’s tuition at the private school for the 2022/2023 school year;

2. Directly pay the private school $80,099.00 on account of the balance owed for the student’s 2022/2023 tuition (summer and ten-month program).

Dated: September 15, 2023 Dora M. Lassinger

DORA M. LASSINGER, 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 Office (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.

DOCUMENTATION ENTERED INTO THE RECORD

PARENT’S EXHIBITS

[REDACTED]

Footnotes

[1] The parent also requested transportation, reimbursement for meals, and funding for an independent neuropsychological evaluation; however, those requests were withdrawn at the hearing; so that the only remaining request for relief was for tuition funding. (Tr. pp. 47-51).