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Case Number: 592065 – NYC: 242748
CORRECTED
FINDINGS OF FACT AND DECISION
Case Number: 242748
Student’s Name: REDACTED
Date of Birth: REDACTED
Hearing Requested By: Parent
Dates of Hearing: February 7, 2023, and February 28, 2023 Record Closed Date: February 28, 2023
Hearing Officer: Audrey Daniel, Esq.
Names and Titles of Persons who appeared at the February 7, 2023 Hearing For the REDACTED REDACTED, Esq., District Representative
For the Parents:
REDACTED, Esq., Attorney for Parent
REDACTED, Parent Parent
Names and Titles of Persons who appeared at the February 28, 2023 Hearing For the REDACTED None
For the Parents:
REDACTED, Esq., Attorney for Parent
REDACTED, Parent Parent
I. Introduction
and Procedural History On January 3, 2023, I was appointed to conduct an impartial hearing pursuant to 20 U.S.C. §1415, regarding the special education program of REDACTED ("Student") brought by her parents (“Parent” or “Parents”). A pre-hearing conference was held on January 6, 2023, and hearings were held on February 7, 2023, and February 28, 2023. The REDACTED (“REDACTED”) was represented by REDACTED, Esq. and Parent was represented by REDACTED, Esq.. During the course of the proceedings, the parties moved to extend the case compliance date in this matter, all in order to allow for settlement negotiations and an examination of all relevant witnesses and documents, and to complete the hearing. In considering those requests, I weighed the cumulative impact of the relevant factors and found that, in allowing for adequate time for such purposes, the delays in the resolution of the matter and the extensions of time for such purposes were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The hearing record was closed effective February 28, 2023.
II. Background
Student presently attends the REDACTED School. (“REDACTED”). Parent filed a due process complaint on November 21, 2022 alleging a denial of a Free and Appropriate Public Education for the 2022-2023 school year, and requesting tuition at the REDACTED School for the 2022-2023 school year. (Exh. A). There were two days of hearing. The REDACTED submitted no evidence, and only appeared for the first day of hearing. Parent provided affidavit testimony of a representative from the REDACTED School and Parent. Parent requests funding and/or payment of tuition for the remainder of the twelve-month 2022-2023 school year, reimbursement for transportation, and the addition of assistive technology to Student’s Individualized Education Program (“IEP”). (Exh. A).
III. Discussion
FINDINGS OF FACT AND DECISION
FINDINGS OF FACT
A previous Findings of Fact and Decision filed by Parent ordered the REDACTED to provide an approved non-public for Student. This decision was not appealed. According to Parent, the REDACTED never located this program. (Exh. S ¶3). An IEP meeting was held in March of 2022 and recommended a 12:1:1 special class for math and English Language Arts, as well as counseling and speech language therapy. (Exh. B). The IEP provided for special education transportation, including transportation from the closest safe curb location to school. (Exh. B, page 18). An IEP meeting was eventually held in October of 2022. According to Parent, despite the findings of the impartial hearing office, the REDACTED recommended the same placement that was found inappropriate. (Exh. S¶¶10-14). The team recommended a REDACTED 12:1:1 class and counseling and speech language therapy, as well as special education transportation. (Exh. C, pages 20, 26).
An independent neuropsychological evaluation was conducted on April 14, 2022 (Exh. H). The evaluator diagnosed Student with a mild Intellectual Disability, and recommended a highly structured environment, in a small class setting focusing on functional academics. (Exh. H, pages 12-3). An independent assistive technology evaluation was conducted on April 21-22, 2022. (Exh. I). According to the uncontroverted testimony of Parent, the recommended assistive technology was not provided. (Exh. ¶16). The REDACTED did not defend its failure to implement the recommendations from the assistive technology evaluation. The evaluator recommended a Microsoft Surface loaded with Texthelp, Bookshare, OneNote and twenty hours of training. (Exh. I).
Student was accepted into the transitions program at REDACTED on August 9, 2022 after the admissions process. (Exh. L). Student started attending the REDACTED School in September of 2022. REDACTED is a full-time inclusion school designed for students who benefit from a small, integrated classroom with typical peers, a low student to teacher ratio, and consistent 1:1 support. (Exh. T¶5). Student attends the REDACTED Program, which offers a combination of academic work and transition-related activities; Students can receive related services and continue to pursue a high school diploma. (Exh. T¶6). The REDACTED Program supports students in social-emotional, adaptive life, executive functioning, and vocational skills, and students work on everyday adult skills including health, travel training, functional mathematics and reading and writing. (Exh. T¶¶10-11). There is an advisory program at the beginning and end of every seven hour school day, and students attend five days per week. (Exh. T¶12). Staff meets regularly to discuss students, there are constant check-ins, and staff meets with the family three times per year, and as the need arises. (Exh. T¶19).
Student’s schedule includes daily living skills, finance, hobby building, literacy, community exploration, health, life skills, culinary arts and the related services of speech-language therapy, occupational therapy, and counseling. (Exh. P, page 1 and Exh. T). Student’s REDACTED classrooms have five students and are graded on a pass/fail basis. (Exh. T¶¶14, 18).
Student has made progress while attending the REDACTED School. (Exh. O and Exh. S¶17). Parent reports a major improvement is Student’s reading abilities, socialization skills and self-confidence. (Exh. S ¶¶17-18). The school reports progress in Student’s social skills and engagement. (Exh. T¶¶20-1). The school reports progress in his related services goals. (Exh. T).
Parent signed an enrollment contract with the REDACTED School. (Exh. N). The enrollment contract provided for withdrawal without penalty if Student had enrolled in an appropriate public-school program. (Exh. N). Parent is currently unemployed and unable to pay tuition and seek reimbursement but made the initial deposit of $100. (Exh. S¶21).
Parent submitted a Ten-Day Letter on or about August 22, 2022. (Exh. D, Exh. E and Exh. S ¶5). There is nothing in the record to indicate a response from the REDACTED.
Although transportation was requested and recommended by Student’s IEP, the REDACTED did not provide transportation until October 5, 2022. Until that time, Parent drove Student to school, and is requesting reimbursement for transportation costs. (Exh. B, Exh. E, Exh. R and Exh. S¶¶8-9).
FAPE
The IDEA was enacted to “to ensure that all children with disabilities have available to them a free appropriate public education” (“FAPE”) and to ensure that the rights of children with disabilities and parents of such children are protected.” 20 U.S.C. sec. 1400(d)(1)(A), (B). See also, Forest Grove Sch. Dist. v. T.A., 557 U.S. 2330, 239-40 (2009). Under this statute is the requirement that the education to which access is provided be sufficient to confer some education benefit upon the disabled child. In deciding whether the school district provided as student a FAPE, the inquiry is limited to (a) whether the school district complied with the procedures set forth in IDEA; and (b) whether the student’s IEP is reasonably calculated to enable the student to receive education benefit. Bd. of Educ. v. Rowley, 458 U.S. 176, 179-191 (1982).
The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415(f)(3)(E)(i)). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction." (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). In Endrew F. Douglas County School District RE-1, 580 U.S. ___, 137 S.Ct. 988 (2017), the Supreme Court held that in or order “to meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances. Id. At *10. While the statute ensures an "appropriate" education, it does not guarantee "one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989) (citations omitted); see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 (citations omitted); see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008); Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412(a)(5)(A); 34 CFR 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR 200.1(cc), 200.6(a)(1); see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 (S.D.N.Y. 2010), aff'd, 486 Fed. App'x 954 (2d Cir. Oct. 18, 2012); E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 (S.D.N.Y. 2009).
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); Tarlowe v. New York City Bd. of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008) (noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student), 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).
BURDEN OF PROOF
The burden of proof is on the REDACTED to show that the provided IEP provided FAPE, except in cases involving a unilateral placement, where the parent must prove the appropriateness of the unilateral placement. N.Y. Educ. Law § 4404(1)(c); see also Application of a Student with a Disability, Appeal No. 12-062; Application of a Student with a Disability, Appeal No. 11-053; Application of a Student with a Disability, Appeal No. 11-091.
The REDACTED did not put on a case, did not submit evidence, and made no attempt to show that the recommended program was reasonably calculated to lead to meaningful progress for Student. Therefore, the REDACTED did not meet its burden of proof and Parent is entitled to relief.
APPROPRIATENESS OF THE PRIVATE SCHOOL
Once it is determined that the student has not been provided a FAPE, under New York law, the burden of proof shifts to the parents to show that their unilateral private placement was appropriate. A.D. v. Bd. of Educ. of City Sch. Dist. of City of New York, 690 F. Supp. 2d 193, 206 (S.D.N.Y. 2010) (citing Schaffer, 546 U.S. at 58; N.Y. Educ. L. § 4404(1)(c)). Under the IDEA, parents who unilaterally place their child in a private school do so at their financial risk. Individuals with Disabilities Education Act, §§612(a)(1)(A), 614(d).
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 (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE. (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).
The appropriateness of the parents’ choice turns on whether the chosen school “is reasonably calculated to enable the child to receive educational benefits.” Gagliardo v. Arlington Central School District, 489 F.3d 105, 112. A private placement meeting this standard is “one that is ‘likely to produce progress, not regression.’” Id. (quoting Walczak, 142 F.3d at 130). The parents’ choice must be “appropriate,” “not . . . perfect.” Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006). An appropriate private placement “need not meet state education standards or requirements.” Id. (citing Carter, 510 U.S. at 14). Ultimately, the standard to be applied is to determine whether “[the] unilateral private 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 115. The Second Circuit in Frank G, 459 F.3d at 364-5 held: “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.” the private school must provide an educational program which meets the student's special education needs (see Hardison v. Bd. of Educ., 773 F.3d 372, 386 [2d Cir. 2014]; Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129; Matrejek, 471 F.Supp. 2d at 419).
Initially, this school has previously been found to be appropriate for Student in an earlier case. The REDACTED has not appealed the determination of appropriateness of the placement. Parent has shown, through testimony, and documentation, that the REDACTED School understands Student’s unique educational needs and designed a program to address these needs. Therefore, Parent has met his burden of proof to show the appropriateness of the unilateral placement and is entitled to reimbursement for his unilateral placement.
BALANCING OF THE EQUITIES
The IDEA also provides that reimbursement may be reduced or denied when parents fail to challenge the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; see E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school]). The final criterion for a reimbursement award is that the parents' claim must be supported by equitable considerations. (Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]). With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014]; C.L., 744 F.3d at 840 [noting that "[i]mportant to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA"]).
There is nothing in the record indicating a need to change the balancing of the equities. Parent attended the IEP meetings. Parent contacted the Committee on Special Education to voice concerns regarding the IEP and proposed placement and sent the required Ten-Day Letter. There are no allegations of obstruction or that Parent was uncooperative. Therefore, Parent is entitled to the entirety of tuition for the 2022-2023 school year.
ASSISTIVE TECHNOLOGY
Parent requests the assistive technology that was recommended by the April 2022 independent assistive technology evaluation. (Exh. H). The REDACTED did not object to Parent’s request and did not defend its determination not to include it the Student’s IEP. Therefore, I order the REDACTED to reconvene the Committee on Special Education within thirty days of receipt of this Findings of Fact and Decision to incorporate the recommendations of the independent assistive technology evaluation. (Exh. H).
TRANSPORTATION
Finally, Parent requests reimbursement for transportation costs for the time period that the REDACTED failed to provide the special education transportation recommended by Student’s IEP and Parent had to provide transportation on her own. (Exh. A and Exh. S). Parent provided proof of the cost of providing transportation, and the REDACTED did not dispute either the request or the amount requested. (Tr. 32). Therefore, I order the REDACTED to reimburse Parent $120 within twenty days of receipt of this Findings of Fact and Decision.
IV. Order
IT IS THEREFORE ORDERED THAT:
1. The REDACTED failed to provide Student a Free and Appropriate Public Education for the 2022-2023 school year.
2. The REDACTED shall fund/reimburse Parent for tuition at the REDACTED School for the 2022-2023 school year within thirty days of receipt of invoice and proof of attendance.
3. The REDACTED shall reconvene the Committee on Special Education to adopt the recommendations of Student’s independent Assistive Technology Evaluation within thirty days of receipt of this Findings of Fact and Decision.
4. The REDACTED shall reimburse Parent $120 for costs of transportation for the time period Student was not provided transportation within twenty days of receipt of this Findings of Fact and Decision.
Dated: March 13, 2023
AUDREY DANIEL, 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 ADMITTED AT HEARING
P-A. District None. Parent Exhibit Number of Number Exhibit Date Pages_____ Impartial Hearing Request INDIVIDUALIZED EDUCATION PROGRAM 11/21/22 12 pages
P-B. Individualized Education Program (IEP) 03/22/22 21 pages
P-C. Individualized Education Program (IEP) CORRESPONDENCE 10/13/22 28 pages
P-D. Ten-Day Notice Letter 08/22/22 11 pages
P-E. Email from REDACTED to REDACTED re: Transportation Issues 09/23/22 8 pages
P-F. Prior Written Notice (Notice of Recommendation) 10/31/22 6 pages
P-G. Email from Cuddy Law Firm to REDACTED re: Placement Offer EVALUATIONS/REPORTS 11/01/22 3 pages
P-H. Neuropsychological Evaluation 04/14/22 27 pages
P-I. Assistive Technology Evaluation 04/22/22 16 pages
P-J. Speech and Language Evaluation 04/22/22 24 pages
P-K. Occupational Therapy Evaluation 05/11/22 20 pages
P-L. Vocational Evaluation REDACTED SCHOOL DOCUMENTATION 05/11/22 35 pages
P-M. Acceptance Letter 08/09/22 1 page
P-N. Enrollment Contract 08/16/22 8 pages
P-O. Quarter 1 Progress Report 2022-2023 13 pages
P-P. Student Schedule MISCELLANEOUS UNDATED 1 page
P-Q. Resume of REDACTED UNDATED 1 page
P-S. P-R Parent Transportation Expenses 08/25/22- 4 09/27/22 Affidavit of REDACTED, Parent 12/17/22 3 pages
P-T. Affidavit of REDACTED Impartial Hearing Officer None. 01/30/23 7 pages