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STATE EDUCATION DEPARTMENT OF NEW YORK
X
In the Matter of a Complaint Pursuant to Part 200 of the Regulations of the Commissioner of Education Regarding, STUDENT [1], a minor, by and through his/her Parent(s),
Petitioners
-against-
NEW YORK CITY DEPARTMENT OF EDUCATION,
Respondent.
X
FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION
INTRODUCTION AND PROCEDURAL BACKGROUND
This matter came before the hearing officer by way of a due process complaint filed by the Parent on December 9, 2022. A written response was provided by the Respondent, the New York City Department of Education (hereinafter “DOE”, “District” or “Respondent”). A hearing was held regarding this matter on May 3, 2023, June 7, 2023, and June 27, 2023. It was a closed hearing and the Petitioners were represented by [REDACTED]. Respondent was represented by [REDACTED]. The record was closed on June 28, 2023.
In the due process complaint, the Parent requested tuition reimbursement for a unilateral placement at the [REDACTED] (“[REDACTED]”) covering the 2021-2022 school year.
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 the New York State Education Law, Educ. Law Art. 89 § 4404 et seq., and its implementing regulations, 8 N.Y.C.R.R. § Part 200.
BACKGROUND
Student is a [REDACTED]-year-old child mandated for a 10-month school year who is classified as a student with a Other Health Impairment. The circumstances which gave rise to the current due process complaint involved the alleged failure of the CSE to review the Student’s current IEP, the CSE’s failure to request any updated evaluations for the Student and the CSE’s failure to recommend an appropriate program for the Student for the 2021-2022 and 2021-2022 school years.
ISSUES
1) Whether Student was denied a FAPE for the 2021-2022 school year by the failure of the CSE to request updated evaluations for the Student, by failing to develop an appropriate IEP for the Student for the 2021-2022 school year and/or by failing to recommend or provide Student an appropriate placement.
2) Whether the Parent’s unilateral placement(s) of the Student for the 2021-2022 school year was appropriate to the Student’s needs.
3) Whether the equities favor reimbursement.
Petitioner requests relief in the form of an order directing the District to fund the tuition at [REDACTED] for the 2021-2022 school year.
EVIDENCE SUBMITTED AT HEARINGS
DISTRICT’S CASE
The District presented ten (10) exhibits into evidence which included the following:
D-1: IEP
D-2: IEP Attendance Page
D-3: PWN
D-4: SLL
D-5; Psychoeducational Evaluation
D-6: Classroom Observations
D-7: OT Assessment
D-8: Social History Evaluation
D-9: Psychoeducational Evaluation
D-10: DPC
PARENT’S CASE
The Parent introduced eleven (11) exhibits into evidence which included the following:
P-A: DPC
P-B: TDN
P-C: Psychoeducational Evaluation
P-D: Class Schedule
P-E: Enrollment Contract
P-F: Program Description
P-G: Quarter 4 Report Card
P-H: Progress Report
P-I: Progress Report
P-J: Affidavit – School Representative
P-K: Affidavit - Parent
WITNESSES
The District presented no witnesses.
The Parent presented two witnesses, [REDACTED], CSE Liaison at [REDACTED], and the Parent. In lieu of direct examination, the Parent produced affidavits of the witnesses. [2]
The District was given the opportunity to cross-examine the witnesses.
FINDINGS OF FACT
After considering all of the evidence, as well as arguments of both sides, this Hearing Officers Findings of Fact are as follows: 1) The Student was a [REDACTED]-year-old child entering the 2021-2022 school year. 3 The Student is classified as a student with a Other Health Impairment. [4]
2) The District appeared in this matter and presented documentary evidence. However, on May [3], 2023, the attorney for the District indicated that the District would not be presenting any witnesses for their Prong I case for the school year at issue in this matter.[5] Nonetheless, the District argued in its closing that the documentary evidence it submitted was sufficient to demonstrate that the District offered the Student a FAPE for the 2021-2022 school year. However, in the absence of a witness who could explain how the IEP developed for the Student was appropriate, how the program recommended for the Student was appropriate or whether or not the proposed placement was capable of implementing the Student’s IEP, I am constrained to find that the District has conceded that it did not, among other things, conduct appropriate evaluations, develop an appropriate IEP and did not recommend an appropriate placement for the 2021-2022 school year. This is particularly the case where there was evidence, presented by the Parent, that the District’s IEP and proposed placement were inappropriate for the Student.[6] I am therefore constrained to find that the District has conceded that it did not offer the Student a FAPE for either the 2021-2022 school year.
3) As to the 2021-2022 school year, on August 27, 2022, the Parent sent the District a ten-day notice stating their intention to unilaterally place the Student at [REDACTED].[7] There is no evidence in the record to indicate that the District ever responded to that notice.
4) During the 2021-2022 school year, Student attended [REDACTED]. [8]
5) For the 2021-2022 school year, the Parent submitted documentation to demonstrate that the Student made progress at [REDACTED].[9] In addition, the testimony of the school representative and the Parent detailed the Student’s progress, both academically and otherwise, and reflected that the Student did well at [REDACTED].[10] The District did not meaningfully challenge any of this evidence other than to say that the Student did not receive sufficient counseling, she did not receive graded report cards and that [REDACTED] teachers were not all properly certified.[11] I do not find that these were reasons to find [REDACTED] inappropriate.
6) For the 2021-2022 school year, the Parent submitted documentation which amply demonstrated that [REDACTED] was an appropriate placement for the Student. [12]
In addition, the testimony of the school representative set forth the various ways in which [REDACTED] had created a program which was specifically tailored to address the Student’s unique needs.[13] The District did not meaningfully challenge this evidence.
7) For the 2021-2022 school year, the Parent provided documentation that verified that the Parent was contractually obligated to pay the tuition, inclusive of related services, at [REDACTED] which totaled sixty-four thousand four hundred dollars ($64,400.00). [14]
8) [REDACTED] was an appropriate placement for Student for the 2021-2022 school year. The small class sizes allowed the Student to get more individualized attention and support from the Student’s teachers.[15] In addition, all of the Student’s related services were received at [REDACTED].[16] In addition, Student had access to numerous individual and small group sessions where the Student received additional support from teachers within the school. [17]
CONCLUSIONS OF LAW AND DISCUSSION
Denial of FAPE
The purpose of the IDEA is “to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs.” Bd. Of Educ. V. Rowley, 458 U.S. 176, 179-91 (1982). Implicit in the congressional purpose of providing access to a free and appropriate public education (hereinafter “FAPE”) is the requirement that the education to which access is provided be sufficient to confer some educational benefit upon the handicap child. (Id.)
Pursuant to 20 U.S.C. §1401(9) and 34 C.F.R. §300.17 FAPE is defined as follows:
Special Education and related services that are provided at public expense under public supervision and direction and without charge; meet the standards of the SEA… include an appropriate preschool, elementary school, or secondary school education in the State involved; and are provided in conformity with the individualized education program (IEP).
In deciding whether the Respondent provided a student with a FAPE, the inquiry is typically: (1) whether the Respondent complied with the procedures set forth in IDEA; and (2) whether the student’s IEP is reasonably calculated to enable the student to receive educational benefit (Rowley, supra.). Under the second prong, a school district need not maximize the potential of child but must open the door of public education in a meaningful way, and the IEP must provide the opportunity for more than only a “trivial advancement” P. v. Newington Bd. Of Educ., 546 F.3d. 111 (2nd Cir. 2008).
The IEP is “the centerpiece of the statute’s education delivery system for disabled children” Honig v. Doe, 484 U.S. 305, 311 (1988). An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides appropriate specialized instruction and related services. See 34 C.F.R. §300.320 (a). For an IEP to be “reasonably calculated to enable the child to receive educational benefits,” it must be “likely to produce progress, not regression” Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998).
Additionally, each public agency must ensure that, as soon as possible following the development of an IEP, special education and related services are made available to the child in accordance with the child’s IEP. In order to implement the IEP, a team that includes the child's parents determines where the child should be placed based on the child's IEP. Thus, the placement should not dictate the IEP but rather the IEP determines whether a placement is appropriate. Rourke v. District of Columbia, 460 F.Supp.2d 32, 44 (D.D.C. 2006).
The DOE must ensure that the IEP team reviews a student’s IEP periodically, but not less than annually, to determine whether the annual goals for the child are being achieved. Moreover, the DOE must ensure that the IEP team revises the IEP, as appropriate, to address any lack of expected progress toward the annual goals; and the results of any reevaluation or information about the child provided to, or by, the parents. Additionally, if the parent obtains an independent educational evaluation (“IEE”) at public expense, or shares with the public agency an evaluation obtained at private expense, the school district must consider the results of the evaluation, if it meets agency criteria, in any decision made with respect to the provision of FAPE to the child. The IDEA mandates that an IEP be based on the results of the most recent evaluation of a student.
In determining the appropriate placement for a child, preference is given to the least restrictive environment and the appropriate schools nearest the child's home (Id.). The IDEA requires that unless the IEP of a child with a disability requires some other arrangement, the child is to be educated in the school that he or she would attend if the student was otherwise not disabled. In selecting the least restrictive environment, consideration is given to any potential harmful effect on the child or on the quality of the services that he or she needs. A child with a disability is not removed from education in age-appropriate regular classrooms solely because of needed modifications in the general education curriculum. See 34 C.F.R. § 300.116.
When developing the IEP, the District will have evaluations of the child, as a procedural safeguard the parents are entitled, as a matter of Law, an independent education evaluation (IEE) at public expense. 34 CFR § 300.502
Where a school system fails to provide special education or related services to a student with a disability, the student is entitled to compensatory education, “i.e., replacement of educational services the child should have received in the first place.” Reid v. District of Columbia, 401 F.3d 516 (D.C. Cir. 2005). An award of compensatory education “should aim to place the disabled children in the same position they would have occupied but for the school district’s violations of IDEA” (Id.). Compensatory education is a remedy for “past deficiencies” therefore a finding as to whether a student was “denied a FAPE in the relevant time period is a necessary prerequisite to a compensatory education award.” Peak v. District of Columbia, 526 F. Supp. 2d 32 (D.C. Cir. 2007).
Pursuant to New York Education LAW § 4401(c)(1) the DOE shall have the burden of proof, the burden of persuasion, and the burden of production in impartial hearings except for instances where the parent is seeking tuition reimbursement for a unilateral parental placement and in those cases the parent shall have the burden of persuasion and the burden of production as to the appropriateness of the placement. The burden of proof in matters such as this shall only be met upon a fair preponderance of the evidence. The preponderance of the evidence standard requires that the trier of fact to find that the existence of a fact is more probable than its nonexistence. Concrete Pipe & Products of California, Inc. v. Construction Laborers Pension Trust for Southern California, 508 U.S. 602, 622 (1993).
Unlike other standards of proof, the preponderance-of-evidence standard allows both parties to share the risk of error in a roughly equal fashion, except that when the evidence is evenly balanced, the party with the burden of persuasion must lose. Director, Office of Worker’s Compensation Programs v. Greenwich Collieries, 512 U.S. 267, 281 (1994).
In the instant matter, the Respondent provided some documentary evidence but no witnesses as to the 2021-2022 school year. In the absence of a witness who could defend the IEPs, if any, developed for the Student, and, more importantly, explain how the proposed placement, if any, was appropriate for the Student, there is insufficient information in this record to conclude that the District provided the Student with a FAPE for the 2021-2022 school year. As a result, there can be little question that the Student was denied a FAPE for the 2021-2022 school year.
In its closing, the District argued that its documentary evidence alone was sufficient to demonstrate that the District offered the Student a FAPE. Appeal No. 23-005. However, even assuming, for the sake of argument, that the District could meet its burden through documentary evidence alone, the District’s reliance on Appeal No. 23-005 is entirely misplaced to the extent that there was no contradictory evidence in that matter to suggest that the District’s IEP or proposed placement was inappropriate for the Student. That is not the case here where the Parent’s witness, who participated in the IEP meeting, gave multiple reasons why he believed that both the IEP and the recommended placement were not appropriate for the Student. [18] Moreover, in assessing the propriety of the family’s effort to rectify the district’s failing, the decision-maker must take into account the limited range of options available to the family, the degree to which they possessed technical/professional educational expertise, the urgency of the placement timetable, and their natural desire to maximize the student’s potential. The family is under no obligation to seek out a program that skirts just barely above the Endrew minimum, and the district that comes to the table with unclean hands is not in a strong position to argue that, notwithstanding its own derogation of duty, the family should be barred from seeking to remedy the deprivation of FAPE because the program they initiated was too good. One of the fundamental tenets of equity jurisdiction is that ‘he that hath committed iniquity shall not have equity.’
Reimbursement for Unilateral Placement
A court or a hearing officer may order a district to reimburse the parents of a student with a disability for the student’s unilateral private placement if the district failed to make a FAPE available in a timely manner and the unilateral private placement is appropriate, 34 CFR 300, 148 (c); Florence County Sch. Dist. Four v. Carter, 20 IDELR 532 (US 1993). Parents seeking tuition reimbursement as a remedy cannot simply speculate that the assigned school will fail to provide one or more services the student needs to receive FAPE; they must show that the school is not capable of implementing the student’s IEP, M.O. and G.O. v. New York City Department of Education, 65 IDELR 283 (2nd Cir. 2015); Y.F. v. New York City Dept. of Educ., 68 IDELR 92 (2d Cir. 2016, unpublished).
It is true that a unilateral private placement does not need to meet state standards for public education programs to be “appropriate” for reimbursement services, 34 CFR 200.148 (c). However, a unilateral private placement is appropriate for reimbursement purposes if it offers instruction that is specially designed to meet the student’s unique needs as well as the support services the student requires to benefit from that instruction, M.N. v. State of Hawaii, Dept. of Educ., 60 IELR 181 (9th Cir. 2013, unpublished); Ward v. Board of Education of the Enlarged City Sch. Dist. Of Middletown, NY , 63 IDELR 121 (2d Cir. 2014, unpublished).
In the instant matter, the District did not meaningfully contest the appropriateness of the unilateral placement. Moreover, there was a clear demonstration that the unilateral placement chosen by the Parent was appropriate. Specifically, the evidence demonstrated that [REDACTED] engaged the Student in classes, programs and related services which were specifically tailored to address Student’s needs and challenges. The Student was provided with numerous accommodations and afforded the opportunity to engage in both individual and small group instruction, and related services providers that collaborated with the Student’s classroom teachers. Over the course of the 2021-2022 school year, Student demonstrated consistent progress across a broad array of subjects and areas of disability and continued to show marked personal growth.
The fact that the Student may not have been afforded her full compliment of recommended counseling services is utterly meaningless. The Parent’s witness was quite clear that counseling was always available to the Student on an as needed basis and there is no evidence in the record to suggest that the Student was adversely effected by the relative absence of regular counseling. As to the absence of numbered grades, the District fails to point to any evidence or make any rational argument as to how the manner in which [REDACTED] graded the Student was inappropriate or would adversely affect her. Finally, the same can be said of the absence of teachers with NYS certifications, which, as stated, is not a requirement for unilateral placements. In any case, it is hardly necessary for a unilateral placement to meet all the requirements of a public-school placement. Florence County School District Four v. Carter, 510 U.S. 7 (1993).
Based on the progress that the Student made at [REDACTED] and the program that [REDACTED] designed for her, it is abundantly obvious that [REDACTED] was an appropriate placement for the Student.
It is for this reason that I find that the District is directed to fund the cost of the Student’s 2021-2022 placement at [REDACTED] in the amount of $64,400.00.
Equities
Pursuant to 20 U.S.C.A. § 1412(a)(10)(C)(iii), the cost of reimbursement described in clause (ii) may be reduced or denied if:
(I)(aa) at the most recent IEP 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 a free appropriate public education to their child, including stating their concerns and their intent to enroll their child in a private school at public expense; or
(bb) 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 item (aa); (II) 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 section 1415(b)(3) of this title, 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 such evaluation; or
(III) upon a judicial finding of unreasonableness with respect to actions taken by the parents.
As a general rule, a school district may not argue that the “equities are in its favor once it has failed to provide a FAPE or concedes that it has not.” N.R. v. Department of Education of the City of New York, 2009 WL 874061 (S.D.N.Y. 2009). However, where the record demonstrates that the Parent failed to cooperate with the CSE or actively took steps to thwart the District’s ability to develop an appropriate IEP for the Student, it is appropriate for the impartial hearing officer to either reduce or deny the Parent’s request for tuition reimbursement. Neske v. Porter, 2022 WL 3290561 (S.D.N.Y. 2022). In Neske, the Court held,
In determining whether parents have acted unreasonably, courts consider factors including: whether the parents cooperated with the CSE (e.g., providing reports, attending the meeting, participating in the meeting); whether the parents timely notified the school district of their intent to place their child in a private school; whether the parents visited the DOE's proposed placement; whether the parents intended to genuinely consider a proposed public placement, or whether they would have kept their child in private school regardless of the proposed public placement; whether the parents or the DOE unreasonably delayed anything; and the appropriateness of the DOE's conduct.
Id., at 3-4 (citing G.B. v. New York City Dept. of Educ., 145 F.Supp.3d 230, 257 (S.D.N.Y. 2015).
In addition, even where the District fails to present a Prong I case, and even when it does not contest the appropriateness of the unilateral placement, the courts have held that it remains Parent’s burden to demonstrate that the equities are in their favor. R.E. v. New York City Dept. of Educ., 694 F.3d 167, 185 (2nd Cir. 2012); see also Donohue v. New York City Dept. of Educ., 2021 WL 4481344 (S.D.N.Y. 2021).
In the instant matter, the District claimed that the Parent’s signing of a contract to secure a spot for the Student at [REDACTED] demonstrated that the Parent had no intention of placing the Student in a public school and that therefore, the equities favor the District. However, the signing of an enrollment contract, whether or not it required a non-refundable deposit does not, in and of itself, demonstrate that the Parent thwarted the District’s efforts to evaluate a student, develop an IEP or recommend an appropriate placement for the Student. R.B. v. New York City Dept. of Education, 713 F.Supp.2d 235 (2nd Cir. 2010). This is particularly the case where the Parent participated in both IEP meetings that were held for the Student and indicated that they never received a placement letter from the District.
ORDER:
Based on the Findings of Fact and Conclusions of Law and all evidence before the IHO, it is hereby ORDERED that:
1. That the New York City Department of Education is directed to reimburse and/or fund the cost of the Student’s 2021-2022 placement at [REDACTED] in the amount of $64,400.00;
2. As to the tuition reimbursement/funding, all payments shall be made directly to the non-public, unilateral placement(s) upon a showing by the Parent that tuition has not been paid out-of-pocket by the Parent. If the Parent can show that out-of-pocket payment to the placement(s) was made by the Parent, then the Parent shall be reimbursed by the District; and,
3. The district must immediately upon receipt, enter this order on a system that is used to keep track of such orders.
SO ORDERED:
Dated: June 29, 2023
_Steven P. Forbes
Steven P. Forbes
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.
STATE EDUCATION DEPARTMENT OF NEW YORK
X
In the Matter of a Complaint Pursuant to Part 200 of the Regulations of the Commissioner of Education Regarding, STUDENT, a minor, by and through his/her Parent(s),
Petitioners
-against-
NEW YORK CITY DEPARTMENT OF EDUCATION,
Respondent.
X
CERTIFICATION OF RECORD
The record before me as the Hearing Officer in this matter of the following:
1. Administrative Due Process Complaint dated December 9, 2022.
2. Notice of Hearing and Appointment dated March 2, 2023.
3. The District’s Exhibits 1-10 totaling one hundred (100) pages
4. Parent’s Exhibits A-K totaling ninety-three (93) pages.
5. The written transcript of the hearing totaling sixty-nine (69) pages.
6. Findings of Fact and Decision dated June 29, 2023.
I, Steven P. Forbes, the Hearing Officer in this matter, do hereby certify that the attached record is accurate and encompasses the entire record in the above-entitled matter as of this date.
I further certify that the materials forwarded herewith are the original or a true copy of the original documents and/or other tangible items that constitute the record in this matter.
EXECUTED this 29th day of June, 2023.
__Steven P. Forbes_______
STEVEN P. FORBES
Impartial Hearing Officer
Footnotes
[1] Personally, identifiable information is attached as a cover sheet to this decision and must be removed prior to public distribution.
[2] P-J; P-K.
[3] D-1.
[4] Id.
[5] T., page 23.
[6] P-J, pages 12-13.
[7] P-B.
[8] P-G.
[9] P-H; P-I.
[10] P-J; P-K..
[11] T., pages 65-67.
[12] P-F.
[13] P-J.
[14] P-E.
[15] P-J.
[16] Id.
[17] Id.
[18] P-J, pages 12-13.