Impartial Hearing Decision

Findings of Fact and Decision Case No. 243141

FINDINGS OF FACT & DECISION

City/State: 243141

Student’s Name: [REDACTED] (Hereinafter referred to as “Student”)

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Request by: PARENT (Hereinafter referred to as “Parent”)

School: [REDACTED] (Hereinafter referred to “Academy”)

Actual Record Close: December 13, 2023

Hearing Officer: ANN MARQUEZ, ESQ.

Date of Decision: December 13, 2023

NAMES AND TITLES OF PERSONS WHO APPEARED

For the Student:

[REDACTED], ESQ., Parent Representative

[REDACTED], Parent Student

[REDACTED], Co-head of School, The [REDACTED]

For the Department of Education:

[REDACTED], ESQ., District Representative

[REDACTED], ESQ., District Representative

[REDACTED], ESQ., District Representative

x

[REDACTED], a minor, by and through the Parents

DECISION AND ORDER

Petitioner

-against- Case No. 243141

NEW YORK CITY DEPARTMENT OF EDUCATION

Respondent. x

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) through the Parent’s Due Process Complaint (“DPC”) filed on November 30, 2022, then amended DPC was filed on April 10, 2023. (Ex. A, B)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 during the for the 2022-2023 school year (school year at issue). The Parent is seeking an order for tuition reimbursement for the Student’s tuition at the Academy for the 2022-2023 school year. Id.

On January 19, 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, and documentary evidence, and a closing brief. The District representative did not.

Lists of the documentary evidence submitted are appended to this Order. Smith

School for the 2022-2023 school year an

BACKGROUND

The Student is a [REDACTED]-year-old student and classified by the DOE with Speech or Language Impairment. (Ex. D). The Student’s classification and eligibility for special education support and services are not in dispute. Further, the Student is diagnosed with Prader-Willi Syndrome, Language Disorder and Developmental Coordination Disorder. (Ex. C).

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 him a free appropriate public

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.

education (“FAPE”). The Parents enrolled the Student at Academy for the 2022-2023 school year. For the school year at issue, the Parents now seek an order for direct funding/tuition reimbursement for the Student’s tuition with related services. Id.

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 Student was provided with a FAPE for the school year at issue.

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. November 9, 2023; Ex. C, D, G, I, J). The Student was classified by the DOE with Speech or Language Impairment. (Ex. D).

The Student’s neuropsychological evaluation conducted by David H. Salsberg, Psy.D., dated February 27, 2022, concluded that the Student continues to present with significant challenges related to language, attention, self-regulation, socialization, and fine motor skills. (Ex. C). She requires placement in a full-time small special education classroom with a low student-to-teacher ratio (equal to or less than 8 students) within a small, supportive, and nurturing special education school that can provide individualized attention and supports throughout the day in order to address her areas of challenge. Id. Further, Dr. Salsberg reported the Student has been making progress in a highly specialized 8:1:2 preschool classroom, with related services, a 1:1 paraprofessional, and outside support. (Ex. C-9).

For the school year at issue, the Student was unilaterally placed, entering Kindergarten and was 6 years old. (Ex. E, F). The Student is diagnosed with Prader-Willi Syndrome, Language Disorder and Developmental Coordination Disorder. (Ex. C, D).

The Academy is a special education school for students ages five through eleven. (Tr. November 9, 2023, 74). The Academy serves students with language-based learning disabilities, speech-language difficulties with expressive language, pragmatic language, receptive language, and/or sensory needs. Id. The Academy is a New York State approved non-public school for students that cannot be placed in the NYC public school system. (Tr. 75). All teachers are certified by New York State, and all related service therapists are licensed. Id.

Notably, the CSE convened a Turning Five meeting in May 2022, and recommended the Student for placement in an ICT class with a 1:1 paraprofessional in a mainstream public school. (Ex. F). On January 27, 2023, the CSE convened once again, and changed such recommendation, and deferred the Student to the Central Based Support Team for placement in a state-approved nonpublic school. (Ex. D). The record clearly demonstrates that the CSE’s initial recommendations for the Student’s IEP in May 2022 was woefully inadequate, when the CSE later recommended the Student for a deferral to CBST for placement in a state-approved non-public school. (See generally Ex. F, D).

For the 2022-2023 school year, the Student was placed in a small classroom with seven students, one special education teacher, and an assistant teacher. She was provided with one-to-one support throughout the day. (Tr. 78-79). The Student was assessed using a multifaceted assessment to evaluate the Student’s decoding, sight word knowledge, fluency, and comprehension. (Tr. 77; Ex.G-1). The record demonstrates the Student benefitted from multisensory instruction, and provided with both visual and auditory aids, when introduced to new concepts. The Student was presented information in a contextualized format to encode and retrieve material, such as ‘Lively Letters.” Id. She learned decoding with hands-on instructional approach called the Constable Reading Method based on reading research and speech and language science. (Tr. at 80; Ex. G-1). The Student made progress in decoding, sight word recognition, phonological awareness, and sounding out words. (Ex.G-1, G-2). Additionally, the Student was provided with periodic breaks throughout the school day to reduce mental fatigue, and help her maintain focus and keep her body regulated. (Ex. G-2). She worked on understanding classroom routines and using “whole body listening” during academic times, with only occasional verbal cues to redirect her attention if there is an external distraction. (Ex. G-5).

The Student’s progress report further demonstrated the Academy provided the Student with instruction and related services that were tailored to her unique challenges, and she made meaningful progress. (See generally, Ex. G).

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, aligned with the recommendations in her neuropsychological evaluation, and the Student made meaningful progress for the school year at issue. The Student was placed in a small class with students that had similar challenges, curriculum was tailored to her needs, including substantial related service support, provided with explicit, sequential, direct, and multisensory instruction. Further, the Student was provided with both small group instruction and one-on-one support, a small class size, related services, opportunities for social-emotional growth, and made progress for the school year at issue.

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. (See generally, Tr. November 9, 2023, 99-100; D, E, F).

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).

Further, the record demonstrates that the Parents fully cooperated with the DOE. (See generally, Tr. November 9, 2023, 99-100; D, E, F). The Parents were under a contractual obligation to pay the tuition at the Academy. (Ex H, K). The Student’s tuition at the Academy for the school year at issue is $71,000.00, plus $150.00 (registration, meals, books, etc.) (Ex. H, K), and the Parent paid such tuition in full. (Ex. H, IHO II). Further, the DOE refunded the Parent after CBST referred in January 2023, for the sum of $33,631.58. (Ex. H, IHO II). The Parents now seek an order for the remaining balance for the Student’s tuition reimbursement for the Student’s tuition for the school year at issue. (Ex. IHO II). 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 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 reimbursement for the Student’s 2022-2023 school year at the Academy.

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; and • 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 reimburse the Parent for the Student’s tuition at the Academy for the sum of $71,150.00, minus any payments made by the DOE (Ex. IHO II).

DATED: December 13, 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 Impartial Hearing Request 11/30/2022 5 pp.

B Amended Impartial Hearing Request 4/10/2023 5

C Neuropsychological Evaluation 2/27/2022 13 D IEP 1/27/23 34 E Prior Written Notice 3/31/23 6 F Ten Day Notice Letter 8/22/22 2 G [REDACTED] Year-End Progress 6/12/2023 14

Report H [REDACTED] Tuition Affidavit 2/26/2023 1 I 22-23 Attendance Record Undated 1 J 22-23 Class Schedule Undated 2 K [REDACTED] Enrollment Contract 3/2/2022 4

IHO’s Exhibits:

I. Parent’s Closing Brief 12/7/2023 14

II. [REDACTED] Tuition Affidavit with DOE payments 12/6/2023 1

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