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FINDINGS OF FACT & DECISION
City/State: 242536
Actual Record Close: November 19, 2023
Hearing Officer: ANN MARQUEZ, ESQ.
Date of Decision: November 22, 2023
NAMES AND TITLES OF PERSONS WHO APPEARED
For the Student:
REDACTED, ESQ.,Parent Representative
REDACTED, ESQ.,Parent Representative
REDACTED, ESQ., Parent Representative
REDACTED, Parent Student
REDACTED, Special Education Teacher, REDACTED REDACTED, Director, REDACTED
For the Department of Education:
REDACTED, ESQ.,District Representative
REDACTED, District Representative
REDACTED, ESQ., District Representative
REDACTED, ESQ., District Representative
REDACTED, ESQ., District Representative
x
REDACTED, a minor, by and through the Parents
Petitioner
-against- Case No. 242536
NEW YORK CITY DEPARTMENT OF EDUCATION
Respondent.
x
DECISION AND ORDER
This matter comes before the undersigned Impartial Hearing Officer (“IHO”) through the Parent’s Due Process Complaint (“DPC”) filed on November 21, 2022. (Ex. A)1. The DPC alleged that the DOE failed provide the Student with a Free Appropriate Public Education (“FAPE”) as required by the Individuals with Disabilities Education Act (“IDEA”) by not providing the Student with services for the 12-month, 2022-2023 school year (school year at issue). The Parent is seeking an order for direct funding/tuition reimbursement for the Student’s tuition at the Academy, reimbursement for the REDACTED evaluation, and transportations costs for the school year at issue. (Ex. A).
On February 2, 2023, the undersigned Hearing Officer was appointed to the above referenced matter. Hearings went forward in this case on multiple dates (See, Tr.).[2]
The Parent representative presented opening statements, witnesses, documentary evidence, and a closing brief. The District presented a closing brief.
Lists of the documentary evidence submitted are appended to this Order.
BACKGROUND
The Student is classified with multiple disabilities. (Ex. I). The Student’s classification and eligibility for special education support and services are not in dispute.
The Parents maintain that the DOE failed to offer the Student an appropriate program and placement for the 2022-2023 school year, and thus failed to offer her a free appropriate public education (“FAPE”). The Parents seek an order for direct funding/tuition reimbursement for the Student’s tuition at the Academy, reimbursement for the REDACTED 1 Exhibits shall be referred to as follows: “Alphabet Letters” for Parent Exhibit; “Numbers” for the District’s Exhibits; and “Roman Numerals” for the Impartial Hearing Officer’s exhibits.
evaluation, and transportations costs for the school year at issue. (Ex. A).
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The IDEA is a comprehensive statutory framework established by Congress to ensure that students with disabilities are afforded free appropriate public education (“FAPE”). See, 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 US 49 (2005). A “free appropriate public education consists of educational instruction that is designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction.” Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 188 (1982).
In order to demonstrate that FAPE is being provided, the school district must show “that it complied with the procedural requirements set forth in the IDEA, and that the Individualized Education Plan (“IEP”) developed by its Committee on Special Education (“CSE”) through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits.” See, Application of Child with a Disability, Appeal No. 05-061, quoting, Rowley at 206. The student’s recommended program must also be provided in the least restrictive environment with non-disabled peers. See, Walczak v. Florida Union Free Sch. Dt., 142 F.3rd 119 (2nd Cir. 1998). Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and Parent of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally, Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Rowley, at 206-07).
Under the FAPE analysis, the public school and/or Local Education Agency (“LEA”) has the burden of persuasion and the burden of production to demonstrate that the disabled child was provided a FAPE as set forth in the IDEA.
Here, the District representative did not present any evidence to demonstrate the DOE provided a FAPE for the school year at issue. (Tr. June 1, 2023, 35). There was absolutely no explanation, let alone a cogent and responsive explanation, for the CSE’s program and placement recommendations.
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).
Based upon the foregoing, the District failed to demonstrate that the school district offered the Student a FAPE for the 2022-2023 school year. Therefore, the Student was denied a FAPE for the 2022-2023 school year, which is the first prong of the three Burlington/Carter criteria for public funding tuition related to unilateral placement.
THE UNILATERAL PLACEMENT OF THE CHILD IN THE PRIVATE SCHOOL WAS
APPROPRIATE -TUITION REIMBURSEMENT
The IDEA specifically contemplates that "when a public school, Local Education Agency (“LEA”) fails to provide a FAPE and a child's Parent place the child in an appropriate private school without the school district's consent, a court may require the district to reimburse the Parent for the cost of the private education." Forest Grove, 129 S. Ct. at 2488; see 20 U.S.C. § 1412(a)(10)(C).
When a state receiving federal funding for special education fails to give a disabled child a FAPE under the IDEA, the child's Parent or guardians may unilaterally place the child in an appropriate private school and seek tuition reimbursement from the state. See Florence County Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7, 12 (1993) ("Carter"); Sch. Comm. of Burlington, Mass. v. Dept. of Educ., 471 U.S. 359, 369-70 (1985) ("Burlington").
Under the Burlington-Carter test for tuition reimbursement, plaintiffs are entitled to reimbursement of private school tuition if (1) the IEP was not "reasonably calculated to enable the child to receive educational benefits," (2) "the private schooling obtained by the Parent is appropriate to the child's needs," and (3) equitable considerations support the plaintiffs' claim. T.Y., 584 F.3d at 417 (citation omitted);see also Forest Grove, 129 S. Ct. at 2496 ("Parent are entitled to reimbursement only if a federal court concludes both that the public placement violated IDEA and the private school placement was proper under the Act. And even then, courts retain discretion to reduce the amount of a reimbursement award if the equities so warrant. . .." (citation omitted)).
Under New York law, the burden of persuasion falls upon the Parent to show that their unilateral placement at a private school was appropriate.[3] The Second Circuit cautioned that under a unilateral private placement a parent need only demonstrate that the placement provides educational instruction specifically 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. [4]
The standards for determining whether a private school placement is "appropriate" under the IDEA closely resemble, but does not mirror, the standards for assessing the adequacy and appropriateness provided by the State education for proposed public placement.[5] "[T]he test for the Parent ' private placement is that it is appropriate, and not that it is perfect." Gagliardo, 489 F.3d at 115 (citation omitted). Ultimately, the standard to be applied is to determine whether "[the] unilateral private placement ... provides education instruction specifically designed to meet the unique needs of a handicapped child." Id. [10]
Here, the record demonstrates by the submission of exhibits and the testimony of witnesses that the Academy is an appropriate placement for the Student’s 2022-2023 school year. (See generally, Tr. July 31, 2023, August 8, 2023, September 15, 2023, October 6, 2023; Ex. C, D, F, G, H, J, K, L, M, T). The Student is classified by the DOE with multiple disabilities. (Ex. I).
The Student’s psychological evaluation dated June 7, 2018, diagnosed the Student with a primary diagnosis as mild intellectual disability. She presents with delays in gross motor skills, fine motor skills, expressive and receptive language, REDACTED, REDACTED, and cognition. (Ex. C-6). Her diagnoses consist of Mild Intellectual Disability, Severe Receptive-Expressive Language Disorder, Oral-motor dysfunction, Mild REDACTED, REDACTED, Autism Spectrum DisorderWith accompanying intellectual impairment, With accompanying language impairment, Associated with a known REDACTED (REDACTED), and Associated with mild REDACTED. Id.
For the school year at issue, the Student was unilaterally placed in the Academy for a 12-month school year. The Director at the Academy provided testimony. (Tr. July 31, 2023). The Director testified and the record demonstrates that the Academy is a small, full-time special education and therapeutic school for students ranging in age from 3-21years old, that present with a variety of learning and language differences including but not limited to autism spectrum disorder, developmental delays, genetic anomalies and syndromes, global delays, language or learning disorders, and neurodevelopmental differences. (Tr. 107-08; Ex. J). Classrooms have high teacherto-student ratios, ensuring individualized attention and differentiated instruction for every learner. The related services team is composed of licensed creative arts therapists, hearing therapists, occupational therapists, physical therapists, social workers, speech and language pathologists, and vision therapists. Staff work collaboratively in order to provide a comprehensive approach to supporting the students to reach their goals. (Tr. 111, 112, 115; Ex. J). Students are grouped according to academic skills, social skills, and learning styles. (T. 111).
For the school year at issue, the Academy provided the Student with REDACTED services, even though her IEP did not. (Tr. 112, 115; Ex. I, L). The Academy’s teachers of the REDACTED assessed the Student and with the recommendations of the REDACTED doctor, the Student’s REDACTED therapy was implemented. (Tr. 114; Ex. F).
The Student’s lead teacher testified that she has a Bachelor’s degree in Early Childhood Education, a Master’s degree in Early Childhood Special Education with an annotation in Severe and Multiple Disabilities, and advanced certification in REDACTED and REDACTED impairments, as well as training in TEACCH methodology, and DIR/Floortime. (Tr. July 31, 2023, 64-65; Ex. L, T).
The Student was placed in a classroom that consisted of six students with peers that were classified with multiple disabilities or REDACTED, REDACTED, with one lead teacher, one teacher assistant and six individual paraprofessionals. (Tr. 67).
The Student is nonverbal, and utilizes an AAC device, an alternative and augmentative communication device, that is individualized to her address her needs. (Tr. 69, 72). She has REDACTED, and is working on tolerating a REDACTED. (Tr. 70). In addition to her AAC device, the Student was provided with other assistive technology devices, such as swtiches (voice output messages), switch-adapted scissors, etc. (Tr. 73-74).
Additionally, for the Student’s REDACTED needs, all materials and activities were modified. Symbols and visuals were created using real photographs, high contrasts (bright colors on black/dark backgrounds), limited visual fields, and limited visual complexity. (Tr. 74-75; Ex. L-21). Further, the Student’s classroom itself was modified by covering items in the classroom with black cloth to decrease visual complexity. (Tr. 75). Her sensory needs were addressed by using a sensory diet that was created in collaboration with her occupational therapist, as well as a weighted vest, a chewy for oral input, a yoga ball, and spinning egg chair, among other supports, etc. (T. 77-78; Ex. L-30).
The record further demonstrates the Academy provided the Student with speech therapy (3x30); AAC services (1x30); occupational therapy (3x30); physical therapy (3x30); REDACTED therapy (2x30); REDACTED education services (1x30, which increased to 2x30); a toileting plan; and paraprofessional services. (Ex. L-1 and T-1). Data was collected to assess her progress, and progress reports were generated twice per year. (Tr. 90-91, 95; Ex. L, T). The progress reports provided further details into the support provided to the Student, her challenges, and the progress she made. (Ex. L, T).
The DOE did not present any evidence to challenge the Parents’ contention that the Academy placement is an appropriate program and placement for the Student. The record amply establishes that the placement was appropriate and provided the Student with educational instruction that was specifically designed to meet the Student’s unique special education needs and he was supported by such services that are necessary to permit him to benefit from educational instruction.
Overall, the record demonstrates that at the Academy the Student was provided with an individually tailored program, an appropriate placement that was aligned with the recommendations in her psychological evaluation for the Student to make meaningful progress for the school year at issue. The Student was provided with a small class size, one to one support, intensive therapeutic support in a collaborative manner, related services, including REDACTED therapy services, and opportunities for social-emotional growth, and made progress for the school year at issue. (See generally, Tr. July 31, 2023, August 8, 2023, September 15, 2023, October 6, 2023; Ex. C, D, F, G, H, J, K, L, M, T).
Based upon the foregoing, by the preponderance of the evidence, the Parent has met its burden of proving that the unilateral placement and services are appropriate, and the placement and services provide educational instruction specifically designed to meet the unique needs of this Student.
BALANCING THE EQUITIES
The determination of whether or not equitable factors support a parent’s claim for tuition reimbursement hinges, in large part, on whether or not the parent cooperated with the CSE. The DOE did not raise any issues that would limit or preclude tuition reimbursement. In fact, it did not oppose tuition reimbursement 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. (Ex. B).
Equitable considerations are relevant in fashioning relief, and the court enjoys broad discretion in so doing. Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required."[6] Carter, 510 U.S. at 16 (citation omitted).
The record is devoid of evidence establishing that the cost of the private education was unreasonable. The District has not “identified . . . particular services provided by [the School] that the district considered unnecessary to the provision of a FAPE (and for which reimbursement was therefore not required)or. . . otherwise shown that only a portion of [the student’s] tuition cost should be reimbursed” (M.H., 685 F.3d at 254-55 n.12).
The record demonstrates that the Parents fully cooperated with the DOE. (See generally, Tr. August 8, 2023, 146; Ex. B). Further, the record demonstrates that the Parents are financially unable to pay the full tuition at the Academy for the school year at issue. (Tr. August 8, 2023, 155-157; Ex. N, O). The Student’s tuition at the Academy with related services for the 12-month school year at issue is $128,000.00. (Ex. N, O). The Parents paid $33,000.00 towards such tuition for the school year at issue, leaving a balance of $95,000.00. Id. The Parent now seeks an order for direct funding/tuition reimbursement for the Student’s tuition at the Academy for the school year at issue. (Tr. August 8, 2023, 146; Ex. N, O). There are no equitable factors that disfavor funding the parents’ unilateral placement.
Direct payment under such circumstances may be ordered. Based upon the foregoing, the equities lean in favor of the Parent to support the Parents’ claim for direct funding and tuition reimbursement for the Student’s tuition at the Academy for the school year at issue. There are no equitable factors that disfavor funding the parents’ unilateral placement.
Therefore, the Parents have met the third of the three Burlington/Carter criteria for direct public funding and tuition reimbursement for the Student’s tuition for the school year at issue. Having met all three of the Burlington/Carter criteria, the Parents are entitled to tuition direct funding and tuition reimbursement for the Student’s 2022-2023 school year placement at the Academy.
INDEPENDENT EDUCATION EVALUATION
As per New York State Commissioner’s Regulations section 200.5(g)(1), if the parent disagrees with an evaluation obtained by the District, the parent has the right to obtain an Here, the record is clear the Student was denied a FAPE for the school year at issue. The Student required a REDACTED evaluation, and the Parents obtained an independent REDACTED evaluation, dated July 2022-August 2022. (Ex. E, F, Q). The Parents are seeking reimbursement for such evaluation for the sum of $495.00. (Ex. Q). The DOE did not demonstrate by any evidence that their evaluations were sufficient and met IDEA criteria.
Based upon the foregoing, the Parent is entitled to reimbursement to be paid by the DOE for the Student’s REDACTED evaluation. (Ex. Q).
TRANSPORTATION
Pursuant to Education Law §4402(4)(d) provides that a board of education must provide transportation up to a distance of 50 miles to and from a nonpublic school which a student with a disability attend if “such child attends such school for the purpose of receiving services or programs similar to special educational programs recommended for such child by the local committee on special education.”
The statute requires that a board provide such transportation when a parent makes a unilateral placement in a school which offers a program similar to that recommended in the child’s IEP. The record demonstrates the Student is a child with an educational handicapping condition, and she requires placement in a full-time special education program (Ex. A, O). Further, the distance between the family’s home and the Academy is less than fifty miles, supporting a claim for transportation. Id. The Parents are seeking reimbursement for the Student’s travel to and from the Academy for the sum of $2032.00. (Ex. R).
Based upon the foregoing findings of fact and conclusions of law herein, IT IS HEREBY ORDERED the following:
• The DOE failed to meet its burden of proof to demonstrate that the Student was provided a FAPE for the 2022-2023 school year. Thus, the Student was deprived a FAPE for the 2022-2023 school year; • The Parent has met its burden and demonstrated that the unilateral placement of the Student in the Academy for the 2022-2023 school year was appropriate and provides an education instruction that is specifically designed to meet this Student’s unique needs; • The equities favor the Parent. Upon the DOE’s receipt of the Academy’s invoice, supporting documents, and the Student’s attendance records for the 2022-2023 school year, the DOE is to directly fund the Student’s remaining balance, the tuition at the Academy with related services for the sum of $95,000.00 minus any payments made by the DOE (Ex. N, O); and • Upon the DOE’s receipt of the Academy’s invoice, supporting documents, and the Student’s attendance records for the 2022-2023 school year, the DOE is to reimburse the Parent’s for the Student’s tuition at the Academy for the sum of $33,000.00, minus any payments made by the DOE (Ex. N, O); • Upon the DOE’s receipt of the REDACTED Evaluation Invoice dated July 2022-August 2022, with supporting documents of such evaluation, the DOE is to reimburse the Parent for the sum of $495.00, minus any payments made by the DOE (Ex. Q); and • Upon the DOE’s receipt of the Parent’s affidavit and travel receipts, the DOE is to reimburse the Parent’s for the Student’s travel to and from the Academy for the sum of $2032.00, minus any payments made by the DOE (Ex. R, S).
DATED: November 22, 2023
Impartial Hearing Officer-Ann Marquez
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.
District’s Exhibits:
No Exhibits
Parent’s Exhibits:
A 11/21/22 Impartial Hearing Request 6 pp.
B 08/24/22 Ten Day Notice + Confirmation C 03/1/22; 03/11/22 Psychological Evaluation D 03/21/22 REDACTED Consultation E 04/20/21 - 02/10/22 Emails Re: REDACTED Test F 08/19/22 REDACTED Assessment for REDACTED Impairment G 02/10/22 REDACTED Medicine REDACTED Services Letter H 10/07/21; 10/28/21; 12/02/2021 Assistive Technology Evaluation I 04/07/22 Individualized Education Program 24 J 2022-2023 REDACTED Program Description 7 K 2022-2023 REDACTED Learning Plan L September 2022 -January 2023 REDACTED Fall Progress Report 34 M 2022-2023 REDACTED Class Schedule N 02/09/23 REDACTED Tuition Affidavit O 04/25/22 REDACTED Enrollment Contract P Misc. Parent's Tuition Proof of Payment Q 07/18/22 - 08/19/22 REDACTED Evaluation Invoice R 04/11/23 Parent's Affidavit S Misc. Parent's Transportation Proof of Payment T February 2023 -June 2023 REDACTED Spring Progress Report 37
IHO’s Exhibits
I. District’s Closing Brief 11/8/2023 15
II. Parent’s Closing Brief 11/8/2023 7
Footnotes
[2] Reference to the Transcript shall be referred to as “Tr.”
[3] See Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 58 (2005)
[4] Gagliardo, 489 F.3d at 115; C.B. v. Garden Grove Unified School Dist., 635 F. 3d 1155, 1159(9th Cir.).
[5] 34 C.F.R. 300.14 8©; See also Carter, 510 U.S. at 14.
[6] Bch. Comm. of Burlington v. Dept. of Educ., 471 U.S. 359-556; Forest Grove Sch. Dist. V. T.A. 557 U.S. 230; and A.C., 553 F.3d at 171 independent educational evaluation at public expense. If a parent requests an independent educational evaluation at public expense, the school district must, without unnecessary delay, either ensure an independent educational evaluation is provided at public expense or file a due process complaint notice to requesting a hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria. See, NYCRR 200.5(g)(1)(iv).