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CASE NUMBER: 591313 - NYC: 242125
FINDINGS OF FACT AND DECISION
Student’s Name: [REDACTED] (“Student”)
Date of Birth: August 19, 2009
School District: [REDACTED]
Hearing Requested by: [REDACTED] (“Parent”)
Request Date/Date Complaint Filed: November 11, 2022
Date(s) of Hearing: June 20, 2023, July 26, 2023, and August 17, 2023
Actual Record Closed Date: October 2, 2023
Date of Decision: October 2, 2023
Date of Distribution if Different than Decision Date: October 2, 2023
Hearing Officer: Marcel P. Denis, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
JUNE 20, 2023
For the Student:
[REDACTED], Attorney
For the Department of Education:
[REDACTED], Esq., District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
JULY 26, 2023
For the Student:
[REDACTED], Attorney
For the Department of Education:
[REDACTED], Esq., District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
AUGUST 17, 2023
For the Student:
[REDACTED], Attorney
[REDACTED], Parent Student
For the Department of Education:
[REDACTED], Esq., District Representative
INTRODUCTION AND PROCEDURAL HISTORY
On November 11, 2022, the parents (the “Parent”) of [REDACTED] (the “Student”) filed a due process complaint under the Individuals with Disabilities Education Act (the “IDEA”) [20 U.S.C. section 1415(f)] and Section 4404(1) of the New York State Education Law against the New York City Department of Education (the “DOE”) under case number 242125. I was appointed as impartial hearing officer (“IHO”) in that proceeding on January 6, 2023. On June 20, 2023, July 26, 2023, and August 17, 2023, the parties held substantive hearings, and the DOE did not present a case nor cross examined the witnesses presented by the parents (Tr. 51). The compliance date for issuing a decision in this proceeding has been extended.
A hearing was held on June 20, 2023, July 26, 2023, and August 17, 2023. There were closed hearings, and Parents were represented by attorney [REDACTED] and the DOE was represented by attorney [REDACTED]. Parents entered into evidence exhibits: P-Ex A through S. The list of exhibits is appended to this decision.
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 AND POSITIONS OF THE PARTIES
[REDACTED] is a [REDACTED]-year-old student who is diagnosed with “Fragile X Syndrome, Mild Intellectual Disability, Language Disorder, and Attention Deficit Hyperactivity Disorder” (P-Exs. A, D). The DOE classifies the student with “Other Health Impairment” (P-Exs. A, C). The student’s classification and eligibility for special education supports and services are not in dispute. The Parents unilaterally placed the Student at the [REDACTED] for the 2022/2023 school year. In this proceeding, the Parents request that the DOE be directed to fund the Student’s unilateral placement at [REDACTED] for the 2022/2023 school year by making payment directly to the school. The Parents further maintain that the [REDACTED] placement is appropriate and that equitable factors support the tuition reimbursement claim.
The DOE did not deny the parent’s assertion that FAPE was not provided because the IEP provided was inappropriate. The DOE did not meet its burden of production and persuasion. The DOE offered no evidence package or witness testimony. The DOE did not cross-examine the parents’ witnesses and presented no defense. Therefore, parents’ factual allegations and legal conclusion went unchallenged.
The Parents submitted a documentary evidence package, which included the Ten-Day Notices from Parents to the CSE and the affidavit of Tuition Payments.
ISSUES
Whether a denial of FAPE occurred when the DOE failed to offer the student an appropriate IEP and school Placement?
Whether the parent is entitled to reimbursement when the DOE failed offer a cogent explanation as to the appropriateness of the IEP coupled with the failure to establish that equity weighs against the parent?
FINDINGS OF FACT
The student is [REDACTED] years old and attends [REDACTED], a unilaterally placed private school located in Manhattan. 1The student is found eligible for Special education and related services as having a disability under the IDEA and Article 89 of the New York Education Law and Part 200 of Title 8 of the Regulations of the Commissioner of Education.[2] The Parents assert that the student’s disability affects the student’s learning ability.[3] The student requires a small class setting, amongst other accommodations, a sensory diet and at least two paraprofessionals in order to make educational gains. [4]
To address the student’s physical challenges and educational needs, the DOE convened a CSE meeting on January of 2022 purportedly to develop an IEP for the student for the 2022-2023 school year.[5] As a result of the meeting, the DOE generated an IEP that recommended “a 12:1:[1] special class [ ] in a District 75, along with the related services of counseling, speech-language therapy, occupational therapy, and parent counseling and training” without any methodologies. [6] On August 18, 2022, the parents served on the DOE a Ten-Day Notice in which they reiterated their dissent with the recommended program. The parents, having received no answer from the DOE, filed a DPC on November 11, 2022, alleging denial of a FAPE. The DOE did not file an answer to the Parents’ Due Process Complaint. During the hearing, the DOE, through its counsel, did not contest the parent’s factual allegations or legal conclusion which are incorporated herein by reference. The DOE offered no exhibits into evidence, the IEP and the prior written notice without witness testimony to show the appropriateness of the IEP and the recommended program. The DOE did not cross-examine the parents’ witnesses. Therefore, there is no factual dispute as to the parent’s entitlement to reimbursement for the unilateral placement.
CONCLUSION OF LAW
The IDEA provides that children with disabilities are entitled to a Free Appropriate Public Education ("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 Individualized Education Program (“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, No 15-827, 2017 WL 1066206, 137 S.Ct. 988, 69 IDELR 174 (U.S. Mar 22, 2017).
Decisions of impartial hearing officers must be on substantive grounds based on a determination of whether a the student received a FAPE, 8 NYCRR § 200.5(j)(4)(i), except as follows:
In matters alleging a procedural violation, an impartial hearing officer may find that a student did not receive a free appropriate public education only if the procedural inadequacies impeded the student’s right to a free appropriate public education, significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of a free appropriate public education to the parent’s child, or caused a deprivation of educational benefits. Nothing in this paragraph shall be construed to preclude an impartial hearing officer from ordering a school district to comply with procedural requirements under this Part and Part 201 of this Title 8 NYCRR § 200.5(j)(4)(ii).
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 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)).
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 G. and Dianne G. 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 G., 2007 WL 2982269 [Oct. 15, 2007].
The Parents raised multiple challenges to the committee on special education (“CSE”) program and placement recommendations. The DOE did not even attempt to show that it offered the Student a FAPE for the 2022/2023 school year. The Supreme Court has found that “[a] reviewing court may fairly expect those authorities [school district staff] to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” Endrew F. v. Douglas County School District, 137 S. Ct. at 1002 (2017).
The DOE offered no evidence or witness testimony to explain the appropriateness of the IEP. Where the district lay silent and entered no evidence or witnesses to controvert the parent’s position, “the parent is entitled to a presumption as to the truth of the asserted facts underlying her IDEA claim,” and the district’s failure to provide a cogent explanation must be accepted to mean that it “intended to admit every deficiency alleged by the parents in the [DPC] to the extent not contradicted by the hearing record.” SRO Appeal No. 19-06, at 18-19. Therefore, the DOE did not meet its burden of proof in this proceeding. The Parents, on the other hand, met the first of the three Burlington/Carter criteria for tuition reimbursement.
The Parents have the burden of proving that the unilateral placement was appropriate. To meet this burden, the Parents must establish, by a preponderance of the evidence, that the unilateral placement provides “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).
ANALYSIS
This case involves a parentally placed student with an individualized education program (“IEP”). The DOE did not challenge the Parents’ contention that the [REDACTED] placement was an appropriate program and placement for the Student. The Parents presented the testimony of the Program Director at [REDACTED] and the Student’s mother; the Parents also submitted substantial documentary evidence in support of their position that the [REDACTED] placement was appropriate (P-Exs. E, H, I, J and S). The testimony of the Parents’ witnesses (which was uncontroverted) and the Parents’ documentary evidence established that the [REDACTED] placement was appropriate and has been providing the Student with educational instruction that is specifically designed to meet the Student’s unique special education needs, supported by such services that are necessary to permit the Student to benefit from instruction.
The Parents have therefore met the second of the three Burlington/Carter criteria for tuition reimbursement.
The determination of whether equitable factors support a parent’s claim for tuition reimbursement hinges, in large part, on whether the parent cooperated with the CSE. The Parent served the DOE with a Ten-Day Notice that went unanswered or acknowledged (P-Ex. B). The DOE did not raise any issues that would limit or preclude tuition reimbursement. In that regard, the DOE did not make a showing why tuition reimbursement should be denied on equitable grounds. Moreover, the testimony and documentary evidence make clear that the Parents cooperated with the CSE and provided the DOE with appropriate and timely written notice (P-Ex. B).
Based on the foregoing, I find that equitable factors support the Parents’ claim for tuition reimbursement for the 2022/2023 school year. The Parents have therefore met the third of the three Burlington/Carter criteria for tuition reimbursement. Having met all three of the Burlington/Carter criteria, the Parents are entitled to reimbursement for the cost of the Student’s 2022/2023 [REDACTED] placement.
The Student is entitled to services on a ten-month school year basis (P-Exs. F and G). The costs of the ten-month [REDACTED] placement is $130,000.00 (P-Exs. F and G). The DOE did not oppose the relief sought by the parents.
The Parents’ contention that they do not have the financial means to pay tuition directly to [REDACTED] thus, are entitled to direct funding and/or reimbursement is supported by the ruling in Connors v. Mills, 34 F. Supp. 2d 795, 132 Ed. Law Rep. 767 (N.D.N.Y., 1998). The Parents’ tax returns were not offered into evidence however, the mother testified that she has “limited financial resources” to shoulder the tuition costs at [REDACTED] (Tr. 63). Therefore, the parents are entitled to funding/reimbursement as they met the Burlington prerequisites and the DOE is obligated to provide the student with a FAPE, which it failed to do. As the Court in Connors held, “once the Burlington prerequisites relative to a [] private school are met, and a parent shows that his or her financial circumstances eliminate the opportunity for unilateral placement [], the [DOE] must pay the cost of private placement immediately” (Connors v. Mills at 805-806).
The Parents have requested that tuition funding be in the form of direct funding to [REDACTED] (P-Ex. A). The DOE did not oppose the request for direct tuition and related services funding. The mother’s testimony supports their contentions regarding the need for direct tuition funding. The request that the DOE be directed to fund the cost of the Student’s 2022/2023 [REDACTED] enrollment by issuing payment directly to the school and to reimburse the parents for any “amount paid to date” is therefore granted.
The signed contract is included in the Hearing Record (Parent Ex. F) and need not be resubmitted prior to reimbursement.
Based on the aforementioned and the evidence presented, I find that the DOE denied the student a FAPE; therefore, the relief sought by the Parents is hereby granted.
ORDER
IT IS HEREBY ORDERED that the New York City Department of Education is directed to fund the cost of the Student’s 2022/2023 ten-month school year placement and related services at the [REDACTED] in a total amount not to exceed $130,000.00; payment shall be made directly to [REDACTED] no later than two (2) weeks from receipt of the present order; and it is further
ORDERED that the New York City Department of Education is directed to provide and fund the foregoing program on a ten-month school year basis by reimbursing the Parents for any payments they made to [REDACTED] within two weeks of the submission of proof of payment, by issuing payment directly to [REDACTED] for any balance due within two weeks of the submission of an affidavit setting forth the amount due.
Dated: October 2, 2023
Marcel P. Denis, IHO
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.
DOCUMENTS ENTERED INTO THE RECORD
I. IHO Exhibits Date Title Number of Pages dates Compliance date extensions multiple 10 pages
DOE EXHIBITS
PARENT EXHIBITS
A. Hearing Request 11/11/22 8 pages
B. Ten-Day Notice, with Submission and Receipt 8/18/22 3 pages
C. Individualized Education Program IEP 1/12/22 30 pages
D. Evaluations and Assessments Neuro-Behavioral Fragile
X. Evaluation/ Tele-medicine Progress Reports 7/7/21 8 pages
E. Interdisciplinary Report of Progress Update 12/00/22 11 pages
F. Enrollment and Attendance Records Enrollment Contract, 2022-2023 7/21/22 6 pages
G. Tuition Affidavit 1/30/23 1 page
H. Class Schedule 2022-2023 1 page
I. Program Description 2022-2023 8 pages
J. Attendance Record as of 1.30.23 2022-2023 1 page
K. Correspondence and Miscellaneous Records CSE Meeting Notice 1/5/22 3 pages
L. Prior Written Notice 2/10/22 4 pages
M. School Location Letter 2/10/22 2 pages
O. N Parent Notification of Participation in The New York State 2 Alternative Assessment 6/27/22 Prior Written Notice 6/27/22 4 pages
P. School Location Letter 07- 6/27/22 2 pages
Q. Bank Statement 07- 08/2022 3 pages
R. Proof of Payment 08/2022 1 page
S. Affidavits in Lieu of Direct Testimony Affidavit of [REDACTED] 08/16/23 8 pages
Footnotes
[1] Due Process Complaint, Petitioner.
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Parent’s exhibit C.