NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
Case Number: 593386 – NYC: 243758
FINDINGS OF FACT AND DECISION
Student’s Name: REDACTED
School District: REDACTED
Impartial Hearing Officer: Ronald Abraham
Date of Filing: December 14, 2022
Hearing Requested by: Parent
Date of Hearing: March 28, 2023
Record Close Date: April 6, 2023
Date of Decision: April 7, 2023
Names and Titles of Persons Who Appeared March 28, 2023
For the Student:
REDACTED, Parent’s Attorney/Representative
REDACTED, Parent’s Attorney/Representative
REDACTED, Parent Student
REDACTED, Witness
REDACTED, Witness
REDACTED, Observer
For the Department of Education:
REDACTED, DOE Attorney
BACKGROUND
Student is a REDACTED year old child who is classified by the New York City Department of Education’s (DOE or District) Committee on Special Education (CSE) as a child with a speech or language impairment.[1] The Student’s classification is not in dispute. Student currently attends the Private School and has attended this school since the 2020-2021 school year. [2]
Parent alleges that the DOE failed to provide Student with a Free and Appropriate Public Education (FAPE) for the 2021-2022 school year and requests the following findings: 1) the DOE did not provide Student with a FAPE for the 2021-2022 school year; 2) the Private School was an appropriate placement for Student; 3) the DOE directly fund Student’s tuition at the Private School for the 2021-2022 school year, less the amount paid directly to the Private School by Parent for the 2021-2022 school year; and 4) the DOE reimburse Parent the amount Parent paid directly to the Private School for Student’s tuition for the 2021-2022 school year.
PROCEDURAL HISTORY
On December 14, 2022, Parent filed a due process complaint (DPC) against the DOE, on behalf of Student, under Case No. 243758, pursuant to the Individuals with Disabilities Education Act (“IDEA” or the “Act”), see 20 U.S.C. § 1415(f), and New York State Education Law §§ 4404(1). On December 14, 2022, I was appointed impartial hearing officer (“IHO”) for this case to determine the claims in the DPC and conduct an impartial hearing pursuant to 20 U.S.C. §1415(f) and New York State Education Law §4404(1). On January 13, 2023, the resolution period expired without the parties reaching an agreement. On January 27, 2023, a pre-hearing conference was held. On February 22, 2022, a status conference was held. Finally, on March 28, 2023, a hearing on the merits was held.
At the hearing, Parent’s attorney submitted twenty-three (23) exhibits, all of which were admitted into evidence. Parent’s attorney also presented four (4) witnesses via affidavit: 1) Business Manager (BS); 2) Head of School (HS); 3) Academic Dean (AD); and 4) Parent. The DOE waived its opening statement, did not introduce documentary evidence, did not call witnesses, cross-examined three of Parent’s witnesses, and made a closing statement. A list of the documentary evidence in this proceeding is appended to this Order.
JURISDICTION
A decision in this matter is being rendered, pursuant to the 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 Art. 89 § 4404 et seq., and its implementing regulations, 8 NYCRR § Part 200.
LEGAL FRAMEWORK
The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE. See 20 U.S.C. § 1415(f)(3)(E)(i). Under the IDEA and New York law, where there is a procedural violation resulting in a deprivation of educational benefits to a student or the student’s right to a free appropriate public education is significantly impeded, a hearing officer may find that a child did not receive a FAPE. See 20 U.S.C. § 1415 (f)(3)(E)(ii); 8 NYCRR § 200.5(j)(4)(ii).
The IDEA is a comprehensive statutory framework established by Congress to ensure that students with disabilities are afforded a FAPE. See 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 US 49 (2005). 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 FAPE is further defined as “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 Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). Two purposes of the IDEA 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 parents of such students are protected. 20 U.S.C. § 1400(d)(1)(A)-(B).
A board of education may be required to pay for educational services obtained for a child by the child's parent, if (1) the services offered by the board of education were inadequate or inappropriate, (2) the services selected by the parent were appropriate, and (3) 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 Sch. Dist. Four et al. v. Carter by & Through Carter, 510 U.S. 7 (1993). These three conditions/prongs constitute the Burlington/Carter Test in a tuition reimbursement case.
In actions brought under the IDEA alleging a denial of FAPE, “the court shall grant such relief as the court determines is appropriate”, limited only by the restriction that “the relief is to be appropriate in light of the purpose of the Act.” Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 454 (2d Cir. 2015). Equitable considerations are relevant in fashioning relief, and the court enjoys broad discretion. Florence County Sch. Dist. Four v. Carter by & Through Carter, 510 U.S. 7, 16 (1993). Although an award of damages is not available under the IDEA see Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 (2d Cir. 2002), “a court may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies” Doe v. East Lyme, 790 F.3d at 454.
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). The standard required is a preponderance of the evidence. 20 U.S.C. §1415(i)(2)(C)(iii); see also Walczak v. Florida Union Free Sch. Dist., 142 F.3rd 119 (2nd Cir. 1998).
FINDINGS OF FACT AND DECISION
I. FAILURE TO PROVIDE A FAPE
In IDEA impartial due process proceedings conducted in New York, the burden is on the DOE to establish that it provided a student with a FAPE. M.W. ex rel. S.W. v. New York City Dept. of Educ., 725 F.3d 131, 135 (2d Cir. 2013); A.M. ex rel. E.H. v. New York City Dept. of Educ., 845 F.3d 523, 535 (2d Cir. 2017). At the hearing, the DOE failed to introduce any documentary or testimonial evidence regarding the appropriateness of the program set forth in the IEP in order to enable Student to make progress in light of Student’s circumstances. As a result, the DOE failed to sustain its burden under the Education Law and failed to demonstrate it provided Student with a FAPE for the 2021-2022 school year. Based on the DOE’s failure to sustain its burden under the Education Law, the record establishes that the DOE failed to provide Student with a FAPE for the 2021-2022 school year. Accordingly, Parent has met the first prong of the Burlington/Carter Test for tuition funding and/or reimbursement.
II. THE STUDENT’S PLACEMENT AT THE PRIVATE SCHOOL
When parents unilaterally place their child in a private program and seek funding and/or reimbursement for that program, they must demonstrate the program they have selected is appropriate to meet their child’s needs. A.D. ex rel. E.D. v. Bd. of Educ. of City Sch. Dist. of New York, 690 F. Supp. 2d 193, 206 (S.D.N.Y. 2010) (citing Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006), cert. denied, Bd. of Educ. of Hyde Park Cent. Sch. Dist. V. Frank G., 2007 U.S. Lexis 11520 (Oct. 15, 2007)). Parents are not barred from an award of tuition reimbursement or funding even if the private program does not meet the IDEA definition of a FAPE; the selected program need not employ certified special education teachers or develop its own IEP for the student, and parents’ selection of a program that has not been approved by the state does not bar reimbursement. Frank G., 459 F.3d 356 at 364 (citing Carter, 510 U.S. 7 at 14). Parents need not show that a private placement provides every special service necessary to maximize their child’s potential, but only that it is likely to produce progress and not regression and provides “educational instruction specially designed to meet the unique needs of the . . . 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, 112 (2d Cir. 2007).
The hearing record establishes that the Private School appropriately addressed Student’s needs for the 2021-2022 school year. The testimony of the HS, AD, and Parent, coupled with the documentary evidence, support a finding that the Private School was the appropriate placement for Student.
Head of School HS testified, in relevant part, to the following: 1) for the last thirty (30) years, HS has been employed by the Private School, and has served as Head of School for the last three (3) years; 2) HS is responsible for overseeing the admissions process, creating school-wide policy, overseeing the deans, hiring faculty and staff, and running open houses, among other tasks; 3) the Private School is an innovative private day school for students in 4th through 12th grade with learning differences such as dyslexia, nonverbal learning disabilities, and executive functioning difficulties; 4) the cost to attend the Private School for the 2021-2022 school year was $73,300.00; 5) HS is familiar with Student as Student began attending the Private School during the 2020-2021 school year; 6) during the 2021-2022 school, Student attended the Private School’s Summer Enrichment session from June 28, 2021 through July 22, 2021; 7) the cost of the Summer Enrichment session was $3,600.00; and 8) the progress Student demonstrated during the 2021-2022 school year in reading comprehension, written expression, self-advocacy skills, and expressive language skills proves that the Private School was able to meet Student’s academic, social, and emotional needs, and was the appropriate placement for Student. [3]
AD
AD testified, in relevant part, to the following: 1) AD began working at the Private School during the 2010-2011 school year as a Focus teacher and a counselor before becoming the academic dean in 2021; 2) AD’s duties include developing curriculum, mentoring teacher, interfacing with parents, addressing disciplinary issues, monitoring students’ progress, and advising teachers on the adjustment of individual goals; 3) AD is familiar with Student as Student is a 12th grade student in AD’s division at the Private School during the 2022-2023 school year, and AD has been Student’s dean since the 2021-2022 school year; 4) Student’s specific academic and social emotional needs are addressed across all of Student’s classes and in Focus; 5) Student benefits tremendously from working in a small setting with a lot of individual attention; 6) the Private School provided appropriate services for Student during the 2021-2022 school year and is indeed the appropriate setting for Student as Student has become a more confident and verbal student and is now able to engage actively in Student’s classes; 7) Student’s skills have improved across all areas as evidenced by Student’s progress reports from the 2021-2022 school year and Student’s continued advancement toward graduation; and 8) Student has become a more fluent reader and writer, and is able to self-advocate in the classroom when Student needs clarification and support. [4]
Parent
Parent testified, in relevant part, to the following: 1) Student has been diagnosed with a language disorder, a specific learning disorder in the area of reading (i.e. Dyslexia), and a specific learning disorder in the area of writing; 2) as a result of these disabilities, Student struggles with reading and writing; 3) Student has attended the Private School since the 2020-2021 school year, and has made academic progress in all areas, especially in Student’s reading and writing; 4) Student tells Parent that Student enjoys attending the Private School and that unlike in Student’s prior schools, Student feels Student is now actually getting the reading and writing help that Student needs; 5) at the IEP meeting held on June 18, 2021, the IEP team changed Student’s recommended services, even though Student’s needs had not changed since the last IEP that was developed for Student in July 2020; 6) Parent believed the changes made in Student’s June 2021 IEP were not appropriate for Student’s needs; 7) Student has been receiving extended school year services throughout Student’s education, and the June 2021 IEP team changed this and recommended a 10-month program for Student even though Student’s needs had not changed; 8) Parent attempted to contact the DOE recommended school, but was told the school was not allowing visitors due to COVID, and that someone would call Parent to set up an appointment; 9) after not receiving a call back from the recommended school, Parent again called the recommended school and was told that they were not making appointments for visits until September of 2021, and that Parent would be contacted; 10) the recommended school never contacted Parent; 11) the Private School asked Parent if Parent wanted Student to attend the Private School’s summer program and Parent and Student decided it was important for Student to attend the summer program because Student needed more help with Student’s reading skills; 12) the price of the summer program was $3,600.00, of which Parent did not make any payment towards; 13) Parent signed an enrollment agreement with the Private School for the 2021-2022 school year agreeing to pay the tuition of $73,300.00, of which Parent has thus far made two payments totaling $600.00; 14) Parent has not made any further payments as Parent is a single Parent of three children, not currently employed full-time, and cannot afford to make any further payments; and 15) at the end of the 2021-2022 school year, Student was better able to understand what Student reads, Student’s knowledge has increased, and Student was very motivated by the teaching Student received at the Private School. [5]
The weight of the evidence and the credible testimony of HS, AD, and Parent clearly demonstrate that Student made educational progress from the individualized instruction and supports Student receives at the Private School during the 2021-2022 school year. It is hereby noted that, although the DOE cross-examined three of Parent’s four witnesses, said cross-examination did not serve to rebut the relevant testimony in question. Based on the foregoing, I find that the Private School was an appropriate placement for Student for the 2021-2022 school year, and Parent has met the second prong of the Burlington/Carter Test for tuition funding and/or reimbursement.
III. EQUITABLE CONSIDERATIONS
To receive an award of tuition reimbursement associated with a private school program, a weighing of the equities must support that award, as “equitable considerations [relating to the reasonableness of the action taken by the parents] are relevant in fashioning relief.” Frank G., 459 F.3d at 363-64; 20 U.S.C. § 1412[a][10][C][iii]. When a school district fails to provide a student with a FAPE and the private placement is found to be appropriate, “the district court enjoys broad discretion in considering equitable factors relevant to fashioning relief” Gagliardo, 489 F. 3d 105 at 112, citing Carter, 510 U.S. 7 at 16. “A major consideration . . . is whether the parents have cooperated [with the school district] throughout the process to ensure that their child receives a FAPE” N.R. ex rel. T.R. v. Dept. of Educ., 2009 WL 874061, at *6 (S.D.N.Y. 2009) (citation omitted).
The hearing record does not demonstrate that Parent “acted with the requisite level of unreasonableness or misconduct that reimbursement should be denied on equitable grounds.” Jennifer D. ex rel. Travis D. v. New York City Dept. of Educ., 550 F. Supp 2d 420, 437 (S.D.N.Y. 2008). There is nothing in the hearing record to suggest, let alone demonstrate, that Parent interfered in any manner with the DOE’s evaluation of Student or prevented it from providing Student with a FAPE for the 2021-2022 school year. The record also reflects that Parent timely served the DOE with the statutory Ten Day Notice (TDN), wherein Parent gave proper notice that Parent was placing Student at the Private School. [6]
One of the purposes of the statutory notice provision is to provide the school district with “an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a free appropriate public education can be provided in the public schools” Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 (1st Cir. 2004); see also R.B. and H.Z. ex rel. C.Z. v. New York City Dept. of Educ., 713 F. Supp. 2d 235, 248 (S.D.N.Y. 2010). The DOE failed to present any evidence or witness testimony to demonstrate that it replied to Parent’s TDN, or that it offered an appropriate placement for Student for the 2021-2022 school year. Furthermore, the DOE failed to introduce any documentary or testimonial evidence regarding the appropriateness of the program set forth in the IEP in order to enable Student to make progress in light of Student’s circumstances. Based on the foregoing, I find Parent has met the third prong of the Burlington/Carter Test, as a weighing of the equities supports an award of tuition funding and/or reimbursement to Parent.
The record establishes that Parent incurred an obligation to pay the Private School the total sum of $73,300.00 for Student’s enrollment in the Private School from September 2021 through June 2022.[7] It was undisputed that Parent has paid a total of $600.00 towards this tuition. The hearing record further demonstrates that Parent is unable to pay the Private School tuition as Parent is a single parent supporting three children, and is currently not employed full-time.[8] Tuition funding paid directly to a private school is justified where parents have satisfied the Burlington/Carter Test and have shown that they cannot afford to front the cost of their child’s tuition. E.M. ex rel. N.M. v. New York City Dept. of Educ., 758 F. 3d 442, 452-454 (2d Cir. 2014); Mr. and Mrs. A., 769 F. Supp. 2d at 427. Connors v. Mills, 34 F. Supp. 2d 795, 804 (N.D.N.Y 1998). Accordingly, I find the Private School is entitled to be paid the remaining sum of $72,700.00 for Student’s attendance for the 2021-2022 school year.
Parent testified that the Private School asked Parent if Parent wanted Student to attend the Private School’s summer program, and that Parent and Student decided it was important for Student to attend the summer program because Student needed more help with Student’s reading skills.[9] The price of the summer program was $3,600.00, of which Parent did not make any payment towards.[10] Based on Parent’s testimony, I do not find an extended school year award appropriate. Although Parent disagreed with Student’s current IEP setting forth a ten month school program, I find that no credible persuasive evidence was presented to establish that Student would “substantially regress” if Student did not attend an extended school year. (See 8 NYCRR §200.6(k)(1)). Although it is very likely that Student would generally benefit from summer instruction, this benefit cannot be said to be necessary for the DOE to provide Student with the educational benefits required under the holdings of Rowley and Endrew F. “[T]he IDEA ensures the provision of ‘an appropriate’ education, ‘not one that provides everything that might be thought desirable by loving parents.’” (State Appeal No. 22-095 quoting Walczak, 142 F.3d at 132). Accordingly, I find that the DOE is not required to reimburse the Private School for Student’s attendance of its summer program associated with the extended 2021-2022 school year.
ORDER
Based on the foregoing, it is hereby: ORDERED, the DOE failed to provide Student a FAPE for the 2021-2022 school year, ORDERED, the Private School was the appropriate placement for Student for the 2021-2022 school year; ORDERED, the DOE directly fund Student’s tuition at the Private School for the 2021-2022 school year in the amount of $72,700.00 (the tuition of $73,300.00 less the $600.00 paid directly to the Private School by Parent for the 2021-2022 school year); ORDERED, within 15 days of the date of this Order, the DOE reimburse Parent in the amount of $600.00 for the direct payment Parent made to the Private School for Student’s tuition for the 2021-2022 school year; and ORDERED, the DOE is not required to reimburse the Private School for Student’s attendance of its summer program associated with the extended 2021-2022 school year.
So Ordered.
/s/Ronald Abraham
Dated: April 7, 2023
Ronald Abraham
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.
PARENT EVIDENCE
A. Parent’s Due Process Hearing Request 12/14/2022 3 pages
B. Findings of Fact and Decision Case# REDACTED 6/15/2022 9 pages
C. IEP 6/18/2021 27 pages
D. Ten Day Notice 6/25/2021 2 pages
E. Enrollment Agreement 7/20/2021 7 pages
F. Affidavit of REDACTED 2/26/2023 1 page
G. REDACTED School Program Description Undated 1 page
H. Student Attendance 2/6/2023 1 page
I. Schedule 2021 10/21/2021 Fall 1 page
J. Report Card 2021 Undated Fall 9 pages
K. Progress Report 2022 Undated Winter 9 pages
L. Progress Report 2022 Undated Winter 9 pages
M. Report Card 2021-2022 SY Undated Spring 1 page
N. Testing Report 2021-2022 SY 6/20/2022 Spring 4 pages
O. Schedule 2021-2022 SY 1/2/2022 Spring 1 page
P. Enrichment 2021 Enrollment Agreement 6/24/2021 Summer 1 page
Q. Attendance 3/21/2023 Summer 1 page
R. Tuition Affidavit 3/21/2023 Summer 1 page
S. Progress Report 2021 Undated 8/23/2021 & Summer 1 page
U. T Money Order Receipts 4 8/25/2021 Affidavit of REDACTED 3/24/2023 5 pages
V. Affidavit of REDACTED 3/22/2023 4 pages
W. Affidavit of REDACTED APPENDIX 3/22/2023 4 pages
Redacted Information Term Used In FOFD
REDACTED Student
REDACTED Parent/Guardian
REDACTED Parent Attorney/Representative
REDACTED Parent Attorney/Representative
REDACTED DOE Attorney/Representative
REDACTED Private School
REDACTED Business Manager
REDACTED Head of School
REDACTED Academic Dean
REDACTED School District
Footnotes
[1] Ex. C at 1.
[2] Ex. A at 1 and 2.
[3] See Ex. V.
[4] See Ex. W.
[5] See Ex. U.
[6] See Ex. D.
[7] Ex. E at 1.
[8] Ex. U at 4.
[9] Ex. U at 4.
[10] Id.