New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 243376

Student’s Name: [REDACTED], Student

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested by: [REDACTED], Parent

Date of Hearing: May 16, 2023

Record Close: September 22, 2023

Hearing Officer: ANNETTE HICKS GILL, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

JANUARY 30, 2023 *

For the Student:

[REDACTED], Paralegal

For the Department of Education:

NONE

NAMES AND TITLES OF PERSONS WHO APPEARED

FEBRUARY 27, 2023 *

For the Student:

[REDACTED], ESQ., Attorney

For the Department of Education:

NONE

NAMES AND TITLES OF PERSONS WHO APPEARED

MARCH 23, 2023 *

For the Student:

[REDACTED], ESQ., Attorney

For the Department of Education:

[REDACTED], ESQ., District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

MAY 16, 2023 *

For the Student:

[REDACTED], ESQ., Attorney

For the Department of Education:

[REDACTED], ESQ., District Representative

* All appearances were by video conference.

This case was brought before the undersigned Impartial Hearing Officer pursuant to appointment by the New York City Department of Education (DOE) under the Individual with Disabilities Education Act (IDEA), 20 United States Code §1415(f)(1). [REDACTED] (Student) is a [REDACTED]-year-old student whose parent [REDACTED] (Parent) brought the instant action, arguing that the DOE had failed to provide their child with a free appropriate public education (FAPE) for the 2021-2022 school year. He suffers from significant and complex medical needs. (P exhibit A1).

The hearing convened April 21, 2023, and continued May 16, 2023. Extensions were granted in accordance with regulations and the record closed upon receipt of the remaining evidence.

DISTRICT AND PARENT POSITIONS

The Due Process Complaint (DPC) dated December 6, 2022, included multiple claims that the DOE had failed to provide the Student an appropriate educational program and placement for the 2021-2022 school year, requesting payment for unilateral placement at [REDACTED] (School) because of the DOE’s alleged failure to locate a program, public or private, that could implement the student’s Individualized Educational Program (IEP).

At hearing on May 16, 2023, the District representative presented no Prong I case, but stated that they did intend to hold the Parent to the Prong II burden. He further stated that the District believes that the services in this case are excessive, specifically, the one-to-one paraprofessional for the student. Also, the District claimed that some of the time periods for the related services were excessive. The District representative then rested. (Transcript p. 27).

The Parent maintained that the Student had a long history of special needs that are incredibly complex. Due to the District’s failure to recommend a program that was appropriate for her son, the mother unilaterally enrolled her son at the [REDACTED] school, where he had previously attended and benefited from. The Parent stated that she provided appropriate notice to the District and no changes were made. (Transcript pp. 28-30).

FINDINGS OF FACT

On March 23, 2021, an IEP was prepared for the Student which recommended a special class and various services for the student (D exhibit 4 pp. 23-24). Parent claimed that the recommendation set forth was the same that had been made and the past and was not appropriate or adequate for the student. Therefore, the Parent enrolled her child at [REDACTED] and holds that the School provides intensive supports including support for their daily living, and that is one of the reasons each student is provided with a 1:1 paraprofessional among other services. (P exhibit A).

The director of [REDACTED] stated that the school is for students who are severely disabled, including students with traumatic brain injuries, multiple disabilities, and various other conditions. She stated that the staff has a great deal of experience in educating children who suffer from brain injuries and have multiple disabilities. Her affidavit stated that they have many trained professionals on staff all of whom are certified and/or licensed and very qualified to meet all of the students’ needs. (P exhibit L2-L3).

The director stated that the Student’s classification is Traumatic Brain Injury due to his diagnosed seizure disorder. He exhibited sever global delays both motor and cognitive. It is her professional opinion that it was appropriate for the Student to attend [REDACTED] for the 2021-2022 school year. (P exhibit L11). An interdisciplinary team recommended that the Student be placed in a 6:1:1 special education classroom with a 1:1 paraprofessional due to his significant academic, communicative, and social/interpersonal needs because of the intensive nature of his brain-based disability. She stated that he requires extension support, direct instruction, and continual adult supervision. (P exhibit L11-12 & I).

Furthermore, according to the school’s assessment, the Student required a host of services that were provided by the school, and it was demonstrated that he made significant improvements. (P exhibit L12-16 & J), some of which are highlighted as follows: Personal toileting and self-care, with diapers having to be changed at least three times per day. (Transcript p. 36-37). Assistance of two people to help transfer him from his chair for therapy and other activities. (Transcript p.38). Also, the Student needed someone to help him with feeding as he is G tube dependent. (Transcript p. 48). The director testified that the Student required more time in some therapy sessions than was recommended in the IEP. (Transcript pp. 51-57).

The Student’s mother testified that the Student has been at [REDACTED] since 2019 (Transcript p. 60). She stated that she did not agree with the recommendations of the IEP team as it was not an appropriate or conducive learning environment for him, and that the Student never received a placement. She then notified the District about her disagreement and never received a response. (P exhibit B and Transcript pp. 64-68). During his attendance at [REDACTED], the mother observed significant progress in his learning and abilities. She stated that that placement was appropriate because he was getting the services that he needed at the level and frequency, and in the adequate setting. (Transcript pp. 69-70). If the Department of Education had offered an appropriate program for her child, the mother said that she would have considered it. (Transcript p. 70).

The mother earns less than $20,000.00 per year and did sign a contract with the obligation to pay for her child’s tuition although clearly she is unable to afford it. (Transcript pp. 68-69).

The District offered no testimonial evidence to refute the Parent’s claims.

CONCLUSIONS OF LAW

The decision in this case rests on a determination of the three-pronged test set forth by the United States Supreme Court in the Burlington case, which provided that a board of education may be required to pay for educational services obtained for a child by the child’s 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. School Committee of the Town of Burlington v. Dept. of Educ., Massachusetts, 471 U.S. 359 (1985); Florence County Sch. Dist. Four v. Carter, 510 US 7 (1993).

ISSUE 1 - Appropriateness of School District Program

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); see also Tarlowe v. New York City Bd. Of Educ., 2008 WL 2736027 (SDNY 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. The IEP must accurately reflect the results of evaluations to identify the student's needs, establish annual goals related to those needs, and provides for the use of appropriate special education services. 34 CFR §300.320(a)(2); 34 CFR §300.320(a)(4); 8 NYCRR §200.4(d)(2)(iii); 8 NYCRR §200.4(d)(2)(v); see Application of the Board of Education, Appeal No. 14-104; Application of the New York City Department of Education, Appeal No. 13-121.

In this case, the district representative did not state that the DOE had provided the child with a FAPE for the 2021-2022, nor did he provide any witness testimony to refute the Parent’s claims. The District also did not note any issues concerning equity in this matter.

For the reasons noted, I find the district failed to provide a FAPE for the Student. ISSUE 2 – Appropriateness of Parent Placement

Analysis turns to the second prong of Burlington, under which the parents bear the burden of proving the appropriateness of the services obtained for the student. M.S. v. Board of Education of the City of Yonkers, 231 F.3d 96, 104 (2d Cir. 2000); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 94-29; Application of a Child with a Disability, Appeal No. 95-57. In order to meet that burden, the parents must show that the [REDACTED] offered an educational program designed to meet Student’s special education needs. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985). A unilateral placement is only appropriate if it provides education instruction specifically designed to meet the unique needs of a handicapped child. Gagliardo v. Arlington Central School District, 489 F.3d 105 (2d Cir. 2007).

In this regard, I find that the parents have sustained their burden of demonstrating the appropriateness of the program at [REDACTED]. It was established through testimony and other evidence that the school provides the types of services and instruction that the Student is in need of and it is found that he made significant progress at this placement by the Parent and the school Director.

For all the above, I find that the Parent has demonstrated the appropriateness of the program at [REDACTED] for the Student. ISSUE 3 – Equities

The third prong of the Burlington decision requires a balancing of the equities in determining whether reimbursement should be awarded. The Individuals with Disabilities Education Act (IDEA) provides that an award of tuition reimbursement may be reduced or denied if notwithstanding their being advised that they should do so, parents neither inform the CSE of their disagreement with its proposed placement and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the school district with written notice of such information ten business days before such removal. 20 U.S.C. §1412(a)(10)(C)(iii). In this case, the Parent did inform the Factors relevant to equitable considerations include whether the withdrawal of the student from public school was justified. The 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); see also Frank G., 459 F.3d 356 (2nd Cir. 2006).

In terms of equities, the District offered nothing to prevent an award for the student’s tuition at [REDACTED]. REIMBURSEMENT.

A hearing officer is empowered to grant relief he/she or the court determines to be appropriate. 34 C.F.R. §300.516(c)(3). Once such remedy is reimbursement of tuition and related expenses. Florence Cunty Sch. Dist. Four v. Carter, 510 U.S. 7, IDELR 532 (1993); Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S.359, 103 LRP 37667(1985). A local education agency (LEA”) may be required to reimburse parents for their tuition payment to a private school for the services obtained for the student by his or her parents if the services offered by the LEA were inadequate or inappropriate, the services selected by the parents were appropriate under the Act, and equitable considerations support the parents’ claim for reimbursement. Id. In Burlington, the Court found that Congress intended retroactive reimbursement to parents by a Lea as an available remedy in a proper case. Burlington, 471 U.S.at 370-71. “Reimbursement merely requires [an LEA] to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper [IEP] Id. The mere fact that the private school placement does not bar the parents from reimbursement. Florence County Schl. Dist. Four v. Carter, 510 US. 7 (1993).

The initial inquiry is whether the student’s IEP and/or placement is/are “proper or “appropriate.” School Comm. Of Burlington, 471 U.S. at 369 and 374. However, this initial inquiry may go beyond the appropriateness of the IEP and/or placement, See, e.g., Forest Grove v. T.A., 57 U.S. 230 (2009) (child find); P.C. v. Oceanside Union Free Sch. Dist., 818 F. Supp. 2d 516 (E.E.N.Y. 2011) (eligibility) Mr. N.C. v. Bedford Cent. School. Dist., 300 F. App’s 11(2d Cir. 2008) inappropriate evaluation).

In this case, it was established that no placement was offered to meet the student’s needs as demonstrated by the testimony of the Director and the Parent.

Should the hearing officer determine that the school district did not offer a FAPE to the student, the next inquiry is whether the parent’s unilateral placement is appropriate” or “proper”. School Comm. Of Burlington, 42 U.S. at 369 and 370; see also Carter 510 U.S. at 15.

I find that the Parent demonstrated through documentary and testimonial evidence that the unilateral placement was appropriate for the student for the 2021-2022 school year.

The final consideration is the balancing of the equites. In this step, the hearing officer must examine the action of the parents and school district, including:

1. Whether the parents failed to provide the school district with timely notice, either at the most recent IEP team meeting or at least 10 business days prior to removal of the student from the public school of their rejection of the proposed public placement, including their concerns and intent to enroll the student in a private school at public expense. 20 U.S.C. § 1412(a)(10)(C)(iii)(I); 34 C.F.R. § 300.148(d)(1).

2. Whether prior to the student’s removal, the school district informed the parents of its intent to evaluate the student, but the parent did not make the student available for the evaluation. 20 U.S.C. §1412(a)(10)(C)(iii)(II), 34 C.F.R. § 300.148(d)(2).

3. Whether the parents’ action was unreasonable. 20 U.S.C. §1412(a)(10)(C)(iii)(III), 34 C.F.R. § 300.148(d)(3).

4. Whether the cost of the private placement is unreasonable. Florence County Sch. Dist. Four v. Carter, 510 U.S. at 16.

5. Whether there was a lack of parental cooperation with the school district.

C.G. v. Five Town Community Sch. Dist., 513 F.3d 279 (1st Cir. 2008)

In this case, the Parent notified the District of her intention to place her child at [REDACTED], and the District did not respond. I find the Parent’s action and the cost to be reasonable. Lastly, the District failed to demonstrate a lack of cooperation on the Parent’s part.

ORDER

1. The DOE shall directly refund and prospectively fund the student’s tuition at the [REDACTED] school for the 2021-2022school year.

2. The DOE shall also fund the cost of transportation to and from the school.

IT IS SO ORDERED.

Dated: September 28, 2023

Annette HIkcs Gill

ANNETTE HICKS GILL

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 proceedings 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

DEPARTMENT OF EDUCATION EXHIBITS *

1. [REDACTED] IEP 2020-2021 School Year, 4/20/2020, 15 pages DOE

2. [REDACTED] Quarterly Progress Report, 1/15/2021, 1 page DOE

3. IEP Meeting Attendance Form, 03/19/2021, 1 page DOE

4. Individualized Education Program (IEP), 3/19/2021, 31 pages DOE

5. Prior Written Notice, 4/26/2021, 4 pages DOE

6. School Location Letter, 4/26/2021, 3 pages DOE

7. Prior Written Notice, 6/4/2021, 4 pages DOE

8. School Location Letter, 6/4/2021, 3 pages DOE

PARENT EXHIBITS

A. Request for Impartial Hearing, 12/6/2022, 8 pages

B. Ten Day Notice, 6/16/2021, 3 pages

C. Tax Return, 2020 2 pages

D. Enrollment Contract, 2021-2022, 5 pages

E. Payment Affidavit, 6/10/2022, 1 page

F. Classroom Schedule, 2021-2022, 2 pages

G. Program Description, 2021-2022, 10 pages

H. Attendance Record, 2021-2022, 2 pages

I. [REDACTED] IEP, 6/3/2021, 24 pages

J. Q4 Progress Report, 6/27/2022, 12 pages

K. Attendance Record, 2021-2022, 13 pages

L. Affidavit of [REDACTED], 5/10/2023, 17 pages