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CASE NUMBER: 593020- NYC: 243486
FINDINGS OF FACT AND DECISION
Student’s Name: REDACTED (“Student”)
Date of Birth: REDACTED
School District: REDACTED
Hearing Requested by: REDACTED (“Parent”)
Request Date/Date Complaint Filed: December 7, 2022
Date(s) of Hearing: October 27, 2023
Actual Record Closed Date: December 14, 2023
Date of Decision: December 14, 2023
Date of Distribution if Different than Decision Date: December 14, 2023
Hearing Officer: Marcel P. Denis, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
OCTOBER 27, 2023
For the Student:
REDACTED, Attorney
REDACTED, Parent Student
For the Department of Education:
REDCATED, Esq., District Representative
INTRODUCTION AND PROCEDURAL HISTORY
On December 7, 2022, the parents (the “Parent”) of REDACTED (the “Student”) filed a due process complaint under the Individuals with Disabilities Education Act (the “IDEA”) [20 U.S.C. section 1415(f)] and Section 4404(1) of the New York State Education Law against the New York City Department of Education (the “DOE”) under case number 243486. I was appointed as impartial hearing officer (“IHO”) in that proceeding on December 27, 2022. On October 27, 2023, the parties held a substantive Hearing, and the DOE did not present a prong 1 defense nor challenged the parent’s allegations.
Hearing was held on October 27, 2023. It was a closed hearing, and Parents were represented by attorney REDACTED and the DOE was represented by attorney REDACTED. Parents entered into evidence the exhibits: P-Exs A through I. The DOE entered no exhibits into evidence. The compliance date for issuing a decision in this proceeding has been extended. The list of exhibits is appended to this decision.
JURISDICTION
The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.
BACKGROUND AND POSITIONS OF THE PARTIES
REDACTED is a REDACTED-year-old student who is classified by the CSE as a Student with “Speech-Language Impairment” (P-Ex. H). The student is diagnosed with anxiety disorder (P-Exs. A, B). The student’s classification and eligibility for special education supports and services are not in dispute. The Student attends Public School (“P.S.”) REDACTED in REDACTED. In this proceeding, the Parents seek a determination that the DOE denied the student a FAPE for the 2022/2023. The Parents also request that the DOE be directed to place the Student in a New York State-Approved Nonpublic School as a result of the depravation of FAPE.
The DOE did not file an answer to Parents’ DPC nor denied the parent’s assertion that FAPE was not provided.
The Parents submitted a documentary evidence package which included an interim order for an IEE and the testimony affidavit of the student’s neuropsychologist.
ISSUES
Whether a denial of FAPE occurred when the DOE failed to evaluate and offer the student an appropriate IEP.
FINDINGS OF FACT
The student is REDACTED years old and attends a public school located in REDACTED.[1] The student is classified with having a “Speech-Language Impairment” and found eligible for Special education and related services as having a disability under the IDEA and Article 89 of the New York Education Law and Part 200 of Title 8 of the Regulations of the Commissioner of Education.[2] The Parents assert that the student’s disability affects the student’s learning ability.”[3] The Student suffers “with severe allergies to REDACTED” (P-Ex A). “The Student exhibited weaknesses in executive functioning and organization skills, concentration, pragmatic language skills, written expression, ability to complete multi-step assignments” (P-Ex. A). The Student displayed “symptoms of school-related stress and anxiety” (P-Ex. A). The Student is diagnosed with Attention Deficit Hyperactivity Disorder; anxiety disorder; and Specific Learning Disorder with Impairment in written expression (P-Ex. C). The neuropsychologist recommends continuous individualized educational supports for the Student that include SETS services; “extended time, preferential seating, separation location for testing, directions to be read and reread, breaks when needed…”(P-Ex. C). The parent shared with the DOE the evaluation report received from the neuropsychologist.
To address the student’s educational, emotional, and social needs, the DOE convened a CSE meeting on October 06, 2023, almost a year after the DPC was filed and classified the Student as a Student with “Speech-Language Impairment” (P-Ex. H). The CSE recommended counseling one time per week for 30 minutes, individually and speech-language therapy two times per week for 30 minutes, group (P-Ex. H). The related services offered in the IEP did not capture the recommendations made by the neuropsychologist. Therefore, the IEP was inappropriate to meet the Student’s individualized needs.
The DOE did not file an answer to the Parents’ Due Process Complaint. During the hearing, the DOE, through its counsel, conceded prong 1 but argued that the IHO does not have the authority to direct the CSE to convene and recommend placement for the Student (Tr. 49). The DOE did not present any witness to refute the Parents’ factual allegations or legal conclusion that the DOE denied the student a FAPE for the 2022-2023 school year.
CONCLUSION OF LAW AND ANALYSIS
The IDEA provides that children with disabilities are entitled to a Free Appropriate Public Education ("FAPE") (20 U.S.C. § 1400 [d][1][A]. A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”) (34 C.F.R. § 300.13). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA’s procedures and is reasonably calculated to enable the student to receive educational benefits Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances” Endrew F. v. Douglas County Sch. Dist. RE-1, No 15-827, 2017 WL 1066206, 137 S.Ct. 988, 69 IDELR 174 (U.S. Mar 22, 2017).
Decisions of impartial hearing officers must be on substantive grounds based on a determination of whether a the student received a FAPE, 8 NYCRR § 200.5(j)(4)(i), except as follows:
In matters alleging a procedural violation, an impartial hearing officer may find that a student did not receive a free appropriate public education only if the procedural inadequacies impeded the student’s right to a free appropriate public education, significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of a free appropriate public education to the parent’s child, or caused a deprivation of educational benefits. Nothing in this paragraph shall be construed to preclude an impartial hearing officer from ordering a school district to comply with procedural requirements under this Part and Part 201 of this Title 8 NYCRR § 200.5(j)(4)(ii).
School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement (NYS Educ. Law § 4404(1)(c)).
A board of education may be required to pay for educational services obtained for a child by the child’s parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim. (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; see also Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 [2d Cir. 2006], cert denied, Board of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 WL 2982269 [Oct. 15, 2007].
The Parents raised multiple challenges to the committee on special education (“CSE”) program and placement recommendations. The DOE made no attempt to show that it offered the Student a FAPE for the 2022/2023 school year. It offered no witness testimony to explain cogently how it offered the Student a FAPE. 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).
The DOE offered no documentary evidence package or witness testimony to contradict the parent’s factual allegations and support the DOE’s argument that the IEP generated offered the student a FAPE for the 2022-2023 school year. SRO Appeal No.19-061 held that where the DOE offered no explanation or entered evidence to controvert the parent’s allegations, “the parent is entitled to a presumption as to the truth of the asserted facts underlying her IDEA claim.” The DOE’s failure to answer the Parent’s DPC or offered evidence to contradict the Parent’s alleged deficiency is an admission of the alleged facts. SRO Appeal No. 19-061.
The DOE’s argument that the relief sought by the parent is “outside the purview of IHO” (Tr. 49). The DOE’s position as to IHOs cannot order the CSE to defer to CBST for placement has no basis in the law. The DOE cited no case laws or SRO decisions in support of its argument. However, the DOE cited 8 NYCRR sec 200.4(d) which a close reading thereof proves misplaced as it does not support the DOE’s position (Tr. 50). The cited section of 8 NYCRR is in no way controlling. Section 200.4 (d) mentions nothing about an IHO’s authority or lack thereof to direct the CSE to defer to CBST for placement. Therefore, the DOE failed to demonstrate the IHO’s lack of authority to grant the relief sought by the parent. On the other hand, the parent established credibly there was no program generated by the district let alone a placement. The district did not contradict the parent’s allegations and argument that the IHO does have the authority to direct the CSE to recommend placement under SRO 08-103. Quoting the SRO, parent’s counsel read the relevant part of the decision as follows: “Accordingly, as a temporary measure, I will modify the impartial hearing officer’s order and permit those portions of the IEP to remain in effect while changing the placement recommendation to residential setting” (Tr. 51). Parent’s position that IHOs have the authority to order placement is further supported by the ruling in J.T. v. N.Y. Dep’t of Education, 19-CV-3403 (LDH) (LB) (E.D.N.Y. Feb 10, 2021).
Moreover, the Supreme Court in Forest Grove Sch. Dist v. T.A., 557 U.S. 230, 230 (2009) ruled that administrative hearing officers have broad authority in fashioning equitable relief limited only by the evidence or the lack thereof presented by the parties and the purpose of the act.
As per the Second Circuit, there is no limitation to the relief of a FAPE violation as long the relief is fashioned appropriately considering the purpose of the IDEA, In any action brought under the IDEA, the court ‘shall grant such relief as the court determines is appropriate.’ 20 U.S.C. § 1415(i)(2)(C)(iii). The only restriction is that ‘the relief is to be appropriate in light of the purpose of the Act.’Burlington,471 U.S. at 369, 105 S.Ct. 1996 (internal quotation marks omitted). ‘[E]quitable considerations are relevant in fashioning relief and the court enjoys broad discretion in so doing.’ Carter,510 U.S. at 16, 114 S.Ct. 361 (citation and internal quotation marks omitted). An award of damages is not available, Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist.,288 F.3d 478, 486 (2d Cir.2002); but a court may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies, Burlington,471 U.S. at 369, 105 S.Ct. 1996 ; Polera,288 F.3d at 486.
The Student experienced a FAPE deprivation and denial of appropriate services for the period stated in the DPC. The DOE did not meet its burden of production and persuasion to show that it provided the Student with a FAPE for the 2022-2023 school year. The parent’s factual allegations for the year at issue were uncontroverted. Therefore, the parent is entitled to the relief sought.
CONCLUSION
This case involves a challenged student without an individualized education program (“IEP”)4. The DOE challenged the Parents’ relief but not the factual allegations that FAPE was denied for the year at issue. The district presented no witness or evidence to provide a cogent explanation as to its failure to provide a timely the programs for the 2022-2023 school year. The Parents presented the affidavit of the neuropsychologist who evaluated the Student. The Parents also submitted substantial documentary evidence in support of their position that the district failed to provide the Student with a FAPE (P-Exs. C, G, H, and I). The testimony of the Parents’ witnesses (which was uncontroverted) and the Parents’ documentary evidence established that the IEP generated by the district was inappropriate and has not provided the student with educational instruction that is specifically designed to meet the student’s unique special education needs, supported by such services that are necessary to permit the student to benefit from instruction.
The Parents are not seeking tuition reimbursement and therefore do not need to meet the second of the three Burlington/Carter criteria for tuition reimbursement. The district has the burden of persuasion and production and failed to shoulder its burden.
The determination of whether the parent acted equitably under the circumstance hinges, in large part, on whether the parent cooperated with the CSE and provided the CSE enough opportunities to remediate the problem. The Parent served the DOE with a DPC seeking placement (P-Ex. A). The DOE could have resolved the matter during the resolution by offering or referring the matter to the CBST for placement but opted not to do so or filed an answer in response to the Parent’s DPC. The district provided no witness testimony to controvert the parent’s factual allegations as to the deficiencies found in the IEP and the evaluations. As such, the district admitted to the factual allegations listed in the Parent’s DPC. Therefore, the parent acted reasonably and
4
The IEP was provided almost a year after the DPC was filed by the parent, yet no placement was made. equitably under the circumstance. In that regard, the DOE did not make a showing why the reliefs sought by the parent should be denied on equitable grounds.
Based on the aforementioned and the evidence presented, I find that the DOE denied the student a FAPE for the 2022-2023 school year; therefore, the relief sought by the Parents is hereby granted.
ORDER
IT IS HEREBY ORDERED that the New York City Department of Education denied the Student a FAPE for the 2022-2023 and is directed to:
1) Reconvene the CSE to change the Student’s IEP to an appropriate program recommendation and to defer the student’s placement to the CBST for placement in an appropriate NYS approved NPS program specializing in addressing the Student’s disabilities;
2) Ordered that the DOE’s implementation unit shall authorize all actions and services hereby ordered within fifteen (15) days from receipt of the present order.
Dated: December 16, 2023
Marcel P. Denis, IHO
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.
DOCUMENTS ENTERED INTO THE RECORD
I. IHO Exhibits TITLE DATE Number of Pages Compliance date extensions Multiple 10 pages
DOE EXHIBITS
PARENT EXHIBITS
P-A. Demand for Due Process Hearing 12/07/22 4 pages
P-B. Interim Order 01/06/23 3 pages
P-C. Neuropsychological Evaluation 02/23/23 17 pages
P-D. IEE Invoice 02/23/23 1 page
P-E. Report Card 2021-2022 07/07/22 2 pages
P-F. Report Card 07/10/23 2 pages
P-G. Section 504 Accommodation Plan 12/13/22 7 pages
P-H. IEP 09/15/23 23 pages
P-I. Affidavit of Neuropsychologist 10/23/23 12 pages
Footnotes
[1] Due Process Complaint, Petitioner.
[2] Id.
[3] Id.