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Case Number: 592442 – NYC: 243063
FINDINGS OF FACT AND DECISION
Case Number: 592442/NYC:243063
Student’s Name: [REDACTED]
District: [REDACTED]
Hearing Requested By: Parents
Hearing Officer: Martin J. Kehoe III, Esq.
Actual Record Close Date: April 21, 2023
Introduction
This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (“IHO”) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (“IDEA”) and the New York State Education Laws. The School District will be referred to as District, the parent(s) as Parent(s) and the student will be referred to as Student.
Overview This is a “reimbursement” case. A board of education may be required to reimburse parents for their expenditures for private education 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). The analytical framework for deciding a reimbursement case is typically called a three-prong analysis.
This case involves a demand for tuition reimbursement for the 2022-2023 school year (“SY”). The Parents filed the complaint notice on November 29, 2022. (Ex. A) I was appointed as the IHO on November 30, 2022. A hearing was held across multiple dates.[1] The Parents introduced exhibits A-W into the record (all of which were admitted with the exception of exhibit F) and called two (2) witnesses: the Head of The Private School and the Mother. The District offered exhibits 1-5 into the record but did not have any witnesses testify on their behalf.
Parents’ Position The Parents allege that the District failed to provide the Student a Free Appropriate Public Education (FAPE) for the 2022-2023. Specifically, the Parents claim that the recommended program “failed to meet [the Student’s] complex educational needs.” (Ex. A-1) To remedy the above, the Parents seek reimbursement for the tuition costs associated with the unilateral placement of the Student at the Private School.
District’s Position The District maintains that they provided the Student with a FAPE for the 2022-2023 SY, that the Student’s placement at the Private School is inappropriate and insufficiently calculated to meet the Student’s needs, and that the equities favor the District.
Background of the Case On May 16, 2022, a CSE meeting was held to develop an IEP for the Student. It is alleged that this program and placement were inappropriate. Following the meeting, on August 24, 2022, the Parents sent the District a ten-day notice letter[2] in which they rejected the recommendation and notified them of their intent to unilaterally place the Student at the Private School for the 2022-2023 SY. (Ex. B) The Parents filed the complaint notice on November 29, 2022. (Ex. A)
The scope of the impartial hearing is limited to the issues raised in the DPC. 8 NYCRR 200.5 (j)(1)(ii), 20 U.S.C. 1415(F)(3)(B), B.P. v. New York City Dep’t of Educ., 841 F. Supp. 2d 605, 611 (E.D.N.Y. 2012); R.C. ex rel. M.C. v. Byram Hills School Dist., No. 11 civ. 3938, 2012 WL 5862736, p. 11 (S.D.N.Y. Nov. 2012). Issues and allegations not contained within the four corners of this complaint are not to be considered pursuant to the applicable case law and regulations cited above. Similarly, any claims set forth within the DPC that were not addressed at the hearing should not be considered as they are considered abandoned. Application of a Child With A Disability Appeal 08-037 and Application of a Child With A Disability Appeal 10-067, pg. 9, n. 9.
Student History The Student was [REDACTED] years old and classified as Autistic at the start of the 2022-2023 SY. (Ex. 2) He is an affectionate little boy who enjoys singing and listening to music. (Ex. K-5) The Student struggles with self-care, and he cannot tie his shoes, put his clothes on, or feed himself. He also has a mild cognitive impairment and is unable to use language spontaneously. (Ex. 2) The Mother further reports that he lacks safety awareness and has a tendency toward elopement. (Ex. J-6)
Legal Overview The IDEA is a comprehensive statutory framework established by Congress to aid the states in providing disabled children with a FAPE. 20 U.S.C. § 612(a)(I). “A [FAPE] is available to all children with disabilities residing in the state between the ages of 3 and 21.” 20 U.S.C. § 612(a)(1)(A). The IDEA defines a FAPE as special education and related services that:
(A) have been provided at public expense, under public supervision and direction, and without charge,
(B) meet the standards of the state educational agency,
(C) include an appropriate preschool, elementary, or secondary school education in the state involved, and
(D) are provided in conformity with the individualized education program required under § 614(d) of this title. 20 U.S.C. § 601(9). [3] A FAPE is crafted through the collaboration of the disabled student’s parents, teachers, and school district administrators and is recorded in an IEP. 20 U.S.C. § 614(d). The “core of the statute … is the cooperative process that [IDEA] establishes between parents and schools.” Schaffer v. Weast, 546 U.S. 49, 53 (2005). The IEP is, in brief, a comprehensive statement of the educational needs of a disabled child and the specially designed instruction and related services to be employed to meet those needs. 20 U.S.C. § 601(14). In New York State, the IEP is produced by a CSE, whose members are appointed by the board of education or trustees of the school district. N.Y. Educ. Law § 4402(1)(b)(1) (McKinney Supp. 2005).
The IDEA provides numerous procedural safeguards to protect the due process rights of disabled children and their parents. See generally, 20 U.S.C. § 615. These procedures include the opportunity for parents to obtain an IEE of the child (20 U.S.C. § 615(b)(I)) and file a complaint with the state or local educational agency (20 U.S.C. § 615(b)(6)). Any such complaint is resolved through an “impartial due process hearing” in which parents of disabled children have “an opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a [FAPE] to such child.” 20 U.S.C. § 615(b)(6). Parties to an administrative proceeding under the IDEA have the right to written findings of fact and decisions on any complaint about the provision of a FAPE. Polera v. Board of Education Newburgh, 288 F.3d 478, 482 (2nd Cir. 2002).
Prong I
Did the District Provide a FAPE?
Legal Standard
Procedural Standard Detailed procedural provisions lie at the heart of the IDEA. 20 U.S.C. §§ 612 and 615; 34 C.F.R. §§300.300-300.576; Evans v. Rhinebeck Central School District, 930 F. Supp. 83 (S.D.N.Y. 1996); B.E. R.R. v. State Bd. of Educ. 874 F.2d 1036, 1041 (5th Cir. 1989). In order to achieve the goal of providing all children with eligible disabilities with a FAPE, the IDEA statute requires that the states comply with “extensive procedural rights and safeguards” in order to receive federal funds for use in special education programs. See 20 U.S.C. § 615(a); LIH v. New York City Board of Educ., 33 IDELR 1 (E.D.N.Y. 2000); J.G. v. Board of Education of the Rochester City Sch. Dist., 830 F.2d 444, 445 (2d Cir. 1987).
In evaluating whether the District has complied with the procedural requirements of the IDEA, I consider whether the alleged procedural violation either 1) impeded the Student’s right to a free and appropriate public education, 2) significantly impeded the Parent’s opportunity to participate in the decision making process regarding the provision of a free and appropriate education, or 3) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); see also, Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp.2d 415, 419 (S.D.N.Y. Jan. 9, 2007), Application of a Child with a Disability, Appeal No. 07-007.
Substantive Standard IDEA requires an educational program reasonably calculated to enable a child to make progress appropriately considering the child's circumstances. Endrew F. v. Douglas Co. School Dist. Re-1, 137 S. Ct. 988 (2017). This obligation of the District is accompanied by the requirement to demonstrate the appropriateness of the program recommended by its CSE. (Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed Dept Rep 487 [1983]). To meet its burden, a board of education must be able to “. . . offer a cogent and responsive explanation for their decisions . . .” Endrew F., Supra.
Analysis
I first look to the Parents’ allegations to determine the scrutiny to apply in evaluating the District’s presentation. The complaint notice was explicit about the following alleged issues:
a. The DOE failed to administer appropriate assessments to determine [the Student’s] educational needs. The DOE completed a Psychological Update, dated May 12, 2022 (“2022 Psychological Update”), which did not include any new testing of [the Student]. The 2022 Psychological Update simply summarized the results of assessments conducted in the summer of 2020, before [the Student] had even started preschool. There was no updated assessment of [the Student’s] cognition, attention, or executive functioning; memory; academic functioning; social-emotional or behavioral functioning; communication; motor skills; or adaptive functioning;
b. Without appropriate assessments, the IEP’s Present Levels of Performance were not a reliable basis from which to determine [the Student’s] baseline level of functioning, reasonable annual goals, and appropriate programs and services;
c. The DOE failed to conduct a Functional Behavioral Assessment (“FBA”) or develop a Behavioral Intervention Plan (“BIP”) for [the Student];
d. The DOE assigned [the Student] to the New York State Alternate Assessment track, without any discussion of this recommendation at the IEP meeting;
e. The IEP failed to appropriately address [the Student’s] sensory challenges;
f. The IEP failed to appropriately address [the Student’s] attentional and executive functioning challenges;
g. The IEP failed to appropriately address [the Student’s] social-emotional and behavioral challenges;
h. The IEP failed to appropriately address [the Student’s] communication challenges;
i. The IEP failed to recommend assistive technology;
j. The IEP failed to integrate related services throughout the school day; and
k. The IEP sets forth goals that are extremely vague, unmeasurable, and unachievable under the recommended program. (Ex. A)
This is the backdrop in which I weigh the District’s position, mindful that the District has the burden of proof. In New York State, “[t]he board of education or trustees of the school district or the state agency responsible for providing education to students with disabilities shall have the burden of proof, including the burden of persuasion and burden of production, in any such impartial hearing …” N.Y. Educ. Law § 4404 (1)(c), modifying the rule enunciated in Schaffer where “[t]he burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief.” Schaffer, 546 U.S. at 537.
The District’s response to these allegations was summarized on the record by District counsel: The CSE held a Turning-5 IEP meeting on May 16th, 2022, where they classified the student with autism and recommended a 6:1:1 class as well as occupational therapy, parent counseling and training, physical therapy, and speech language therapy. In preparation for the IEP meeting, the team relied upon a classroom observation and a psychological update from 2022. All required members were in attendance at the meeting and all parties were heard. The parent received a school location letter for the 2022/2023 school year on June
15th, 2022, recommending a placement that could implement the student's IEP. As such, the District asserts that it provided a FAPE for 2022/2023 school year. (T. 28) The District opening seemingly hits all of the salient points to make out a prima facie case. But the problem is that the District chose to rely on documents alone. Factual allegations in the complaint notice for which the District bears the burden of proof are deemed admitted if the District fails to address them at the hearing. See SRO No.15-011 (where District conceded and failed to address any allegations, it was deemed to admit deficiencies in IEP); SRO 14-179 (same); SRO No. 01-044 (same).
As a second matter, although there was the offering of an Individualized education program, there was no testimony indicating the nature of the relevant CSE deliberations, or even if such deliberations occurred. Rather, I am left to speculate concerning the particulars of the review process, the rationale employed by the CSE members and the discussions that may or may not have contributed to a final action. Given the serious, specific substantive allegation against the school, and the failure to defend, I find that the District fell short of their burden in this case. L.O. v. N.Y. City Dep't of Educ., 822 F.3d 95, 111 2016 U.S. App. LEXIS 9239.
Conclusion Upon review, I find that the District failed to demonstrate that they met their burden in providing the Student an IEP tailored to meet her individualized needs. I, therefore, rule for the Parents on Prong I.
Prong II
Legal Issue: Did the Parents Establish the Appropriateness of the Private School?
Legal Standard I now consider whether the Parents met their burden of proving the appropriateness of the unilateral placement of the Student at the Private School. On Prong II, New York federal courts have held that parental placements are “subject to fewer constraints than that applied to the school authorities.” Schreiber v. E. Ramapo Cent. Sch. Dist., 700 F. Supp 529 [S.D.N.Y. 2010] The Second Circuit has clearly stated:
“. . . [P]arents 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 v. Arlington Cent. Sch. Dist., 489 F.3d 105 [2d Cir. 2007] quoting Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d Cir. 2006] Moreover, parents "may not be subject to the same mainstreaming requirements as a school board." Frank G. v. Bd. of Ed. of Hyde Park [2d Cir. 2006] quoting M.S. v. Bd. of Ed. of City Sch. Dist. of Yonkers, 231 F.3d 96, 105 [2d Cir. 2000] citing Warren G. v. Cumberland County Sch. Dist., 190 F.3d 80, 84 [3d Cir. 1999] (holding that "the test for the parents' private placement is that it is appropriate, and not that it is perfect").
The Head of School at The Private School – Testimony The Head of School began her testimony on behalf of the Parents by describing the program at the Private School: [The Private School’s] distinguishing feature is a comprehensive applied behavior analysis (ABA) approach that includes specific positive reinforcements, as well as a school-wide multi-disciplinary proactive measures which focus on antecedent procedures over consequence procedures. The basic principles of ABA consist of environmental variables that impact behavior, and through the environmental modification, individualized support and prompts are provided to increase socially significant behaviors while decreasing, replacing, or eliminating impeding behaviors. At [the Private School], we utilize the structure of ABA to extinguish/decrease socially inappropriate behaviors (e.g., aggressive behaviors towards others) and teach and replace target behaviors with prosocial behaviors.
In addition, we use ABA to teach academics (i.e., not only performance behaviors, but also learning). (Ex. V-3)
The Head of School continued, describing the Student’s individual program in some detail:
[The Student’s] individualized weekly program at [the Private School] during the 2022-23 school year consists of ABA therapy, morning and end of day classroom meetings inclusive of BPW, ELA, fluency training, reading, writing, math, and periods of leisure activities. In addition, [the Student] receives a total of 8 sessions of related services: SLT three times per week individually; OT three times per week individually; and PT two times per week individually. [The Student] also receives lessons on art/music and APE. Additional detail about [the Student’s] daily and weekly program at [the Private School] is set forth in his class schedule (Exhibit Q). (Ex. V-11) She concluded with an assessment of the program’s appropriateness considering the Student’s needs:
I have spoken to [the Student’s] teachers and related service providers about his progress during the 2022-23 school year. I have seen [the Student] informally throughout the day and during classroom direct observations. I have reviewed various records and reports produced at [the Private School] since [the Student] enrolled in [the Private School’s] program, including clinical notes, behavior charts, and progress reports.
For all of the reasons noted above, I strongly believe that [the Private School] is an appropriate placement for [the Student] for the 2022-2023 school year and that he has made meaningful progress since enrolling in September 2022. [The Private School’s] team of educators, therapists and related service providers expect continued improvement in his academic, language, behavioral attending and social/emotional development. (Ex. V 16-17)
The Mother – Testimony
The Mother described the ways the Student has benefited from his time at the Private School: [The Student] started at [the Private School] on September 12, 2022. I have seen [the Student] make a lot of improvement and progress during this school year. A few months into the school year, [the Student] became potty trained. [The Private School] provided me and my husband with a lot of support in achieving this milestone. Now that [the Student] is potty trained, he is better able to engage in community activities. I have also seen improvements in [the Student’s] focus and attention. He is more engaged with books and enjoys when I read to him.
Over this school year, [the Student’s] has also made a lot of progress in communication. He can respond to my questions and better use verbal language to express his wants and needs. (Ex. W-5)
In addition to considering the testimony and observations of the Principal, I am mindful of the unique and complicated profile of the Student as outlined above in the “Student History” and is amplified throughout the record. To conclude, I agree that the Private School is appropriate for the Student.
Conclusion
I find that the Private School provided educational instruction specially designed to meet the unique needs of the Student. I credit the Parents’ exhibits and witnesses for articulating the appropriateness of the placement in addition to the Student’s progress. The Parents have met their burden by establishing that such services were necessary to permit the Student to benefit from instruction. I, therefore, rule for the Parents for Prong II.
Prong III
Legal Issue: Did the Parents Cooperate with the District?
Legal Standard 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 where 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 4). The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of 4 § 300.148 Placement of children by parents when FAPE is at issue.
(a) General. This part does not require an LEA to pay for the cost of education, including special education and related services, of a child with a disability at a private school or facility if that agency made FAPE available to the child and the parents elected to place the child in a private school or facility. However, the public agency must include that child in the population whose needs are addressed consistent with §§ 300.131 through 300.144.
(b) Disagreements about FAPE. Disagreements between the parents and a public agency regarding the availability of a program appropriate for the child, and the question of financial reimbursement, are subject to the due process procedures in §§ 300.504 through 300.520.
(c) Reimbursement for private school placement. If the parents of a child with a disability, who previously received special education and related services under the authority of a public agency, enroll the child in a private preschool, elementary school, or secondary school without the consent of or referral by the public agency, a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if the court or hearing officer finds that the agency had not made FAPE available to the child in a timely manner prior to that enrollment and that the private placement is appropriate. A parental placement may be found to be appropriate by a hearing officer or a court even if it does not meet the State standards that apply to education provided by the SEA and LEAs.
(d) Limitation on reimbursement. The cost of reimbursement described in paragraph (c) of this section may be reduced or denied (1) If - (i) At the most recent IEP Team meeting that the parents attended prior to removal of the child from the public school, the parents did not inform the IEP Team that they were rejecting the placement proposed by the public agency to provide FAPE to their child, including stating their concerns and their intent to enroll their child in a private school at public expense; or (ii) At least ten (10) business days (including any holidays that occur on a business day) prior to the removal of the child from the public school, the parents did not give written notice to the public agency of the information described in paragraph (d)(1)(i) of this section;
(2) If, prior to the parents' removal of the child from the public school, the public agency informed the parents, through the notice requirements described in § 300.503(a)(1), of its intent to evaluate the child (including a statement of the purpose of the evaluation that was appropriate and reasonable), but the parents did not make the child available for the evaluation; or (3) Upon a judicial finding of unreasonableness with respect to actions taken by the parents.
(e) Exception. Notwithstanding the notice requirement in paragraph (d)(1) of this section, the cost of reimbursement - (1) Must not be reduced or denied for failure to provide the notice if - (i) The school prevented the parents from providing the notice; (ii) The parents had not received notice, pursuant to § 300.504, of the notice requirement in paragraph (d)(1) of this section; or (iii) Compliance with paragraph (d)(1) of this section would likely result in physical harm to the child; and
(2) May, in the discretion of the court or a hearing officer, not be reduced or denied for failure to provide this notice if -
(i) The parents are not literate or cannot write in English; or (ii) Compliance with paragraph (d)(1) of this section would likely result in serious emotional harm to the child. (Approved by the Office of Management and Budget under control number 1820-0030) (Authority: 20 U.S.C. 1412(a)(10)(C)) such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at 7 [S.D.N.Y. Aug. 27, 2010]).
Tuition reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the child from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense." (20 U.S.C. § 612[a][10][C][iii][I] ; see 34 C.F.R. § 300.148[d]) This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools." (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004])
Analysis
The Parents sent a ten-day notice letter in a timely manner, expressing their intent to unilaterally place the Student at the Private School for the 2022-2023 SY. In the letter, the Parents informed the District that they would seek funding from the District for the placement. (Ex. G-3)
Conclusion Upon review of the record, I find that the Parents cooperated with the District and did nothing to impede them from developing an appropriate IEP for the Student. As such, I find no reason for reduction in tuition reimbursement. I, therefore, rule for the Parents in Prong III. It is therefore ORDERED
For the District to reimburse/directly pay the Parents/Private School for cost of tuition at the Private School where they unilaterally placed the Student for the 2022-2023 SY.
Dated: April 21, 2023
Martin J. Kehoe III, Esq
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.
Footnotes
[1] A hearing was held across the following dates: January 30, 2023; March 8, 2023.
[2] In the letter, the Parents’ representative wrote the following: In the absence of an appropriate program or placement, [the Mother] intends to enroll [the Student] at [the Private School] for the 2022–23 school year. [The Private School] is a small, specialized school that uses an ABA model of instruction to strengthen the academic and social/functional communication skills of students. At [the Private School], [the Student] will be in a 6:1:2 classroom, consisting of six students, one head teacher, and two assistant teachers. He will receive individualized ABA instruction throughout the school day under the supervision of a BCBA, along with related services. [The Mother] intends to request an Impartial Hearing to request (i) funding for [the Student’s] tuition at [the Private School] for the 2022–23 school year, and (ii) funding for home-based ABA and PCAT services, overseen by a BCBA. (Ex. B-4)
[3] “Special education” is defined by the IDEA as specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a child with a disability, including (A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and (B) instruction in physical education. The term “related services” is defined as transportation, and such developmental, corrective, and other supportive services (including speech pathology and audiology, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, counseling services, including rehabilitation counseling, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children. 20 U.S.C. § 601(26).