New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 244050

Student’s Name: [REDACTED]

Date of Birth: [REDACTED]

District: [REDACTED]

Region: [REDACTED]

Hearing Requested By: Parents

Dates of Hearing: February 2, 2023

March 7, 2023

March 15, 2023

April 20, 2023

May 17, 2023

July 11, 2023

Actual Record Close Date: September 1, 2023

Hearing Officer: Maria R. Dispenza, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

FEBRUARY 2, 2023

For the Student:

[REDACTED] Parent Attorney

For the Department of Education:

[REDACTED] DOE Consultant Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

MARCH 7, 2023

For the Student:

[REDACTED] Parent Attorney

For the Department of Education:

[REDACTED] DOE Consultant Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

MARCH 15, 2023

For the Student:

[REDACTED] Parent Attorney

[REDACTED] Parent/Mother

For the Department of Education:

[REDACTED] DOE Consultant Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

APRIL 20, 2023

For the Student:

[REDACTED] Parent Attorney

For the Department of Education:

[REDACTED] DOE Consultant Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

MAY 17, 2023

For the Student:

[REDACTED] Parent Attorney

[REDACTED] Parent/Mother

[REDACTED] Counselor @ [REDACTED]

For the Department of Education:

[REDACTED] DOE Consultant Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

July 11, 2023

For the Student:

[REDACTED] Parent Attorney

[REDACTED] Parent/Mother

For the Department of Education:

[REDACTED] DOE Consultant Representative

INTRODUCTION

On January23, 2023, New York City Department of Education (DOE) appointed me to act as the impartial hearing officer (IHO) in a case brought under the Federal Individuals with Disabilities Education Act (IDEA) [20 USC §1415(f)(3)] (“IDEA”) by the parent (Parent) of [REDACTED] ([REDACTED]) for the school year 2021/22. The Parent requested the hearing by filing an impartial hearing request with the NYC Department of Education (DOE) on or about December 19, 2022. The DPC is carried under New York City (“NYC”) Case No: 244050. The impartial hearing was held over a series of dates, to complete the record on July 11, 2023. The timelines have also been extended to allow the parties opportunity to fully prepare, secure witnesses and obtain transcripts. The record officially closed on September 1, 2023. A list of persons who appeared at the hearing and the documents entered into evidence is annexed hereto.

BACKGROUND AND POSITIONS OF THE PARTIES

[REDACTED] is a student classified by the NYC DOE as "Other Health Impairment” (Exhibits A and B). She has been diagnosed with, including but not limited to: (a). Superior Intellectual Functioning; (b). High Functioning Autism Spectrum Disorder; (c). Attention Deficit Hyperactivity Disorder (ADHD); (d). Generalized Anxiety Disorder; (e). Developmental Coordination Disorder; (f). Motion Sickness, (g). Oppositional Defiant Disorder; and (h) Avoidant or Restrictive Food Intake Disorder (Exhibits A, C and D).

[REDACTED] has attended the [REDACTED] ([REDACTED]) since the 2017/18 school year, prior to which she was homeschooled as Parent contends no public school setting was able to meet her needs (Exhibit A). A CSE meeting was held on February 2, 2021 to prepare an IEP for the 2021/22 school year and a reconvene held on June 11, 2021 as [REDACTED] was not provided an opportunity to participate in the initial meeting (Exhibit A). The resulting IEP recommended a general education program with SETSS 3 times per week -1:1, along with related services of Counseling (2x40, 1:1), Occupational Therapy (2x40, 1:1), Speech Language Therapy (1x40, 1:1) and Physical Therapy (1x40, 1:1), a full-time paraprofessional and Assistive Technology, specifically a Laptop with support/annotations (Exhibits A and B). [REDACTED] alleges voicing her objections to the recommended program at the meeting (Exhibit A). Further on August 31, 2021 [REDACTED] provided notice to the DOE via a ten-day notice (TDN), expressing her objections and further that for the start of the 2021/22 the DOE failed to offer a school placement. She noticed the DOE that absent an appropriate program and placement she would re-enroll [REDACTED] at [REDACTED] and seek reimbursement/funding from the DOE (Exhibit N).

The Parent alleged numerous procedural violations and substantive inadequacy and claimed the recommended program and placement amounted to a deprivation of FAPE for the 2021/22 school year. The Parent alleges giving notice to the DOE of its failure to provide [REDACTED] with an appropriate program and placement and of her intent to unilaterally place [REDACTED] at a private placement and seek funding (Exhibits A and N). Subsequently, as a remedy for the DOE’s failure to provide [REDACTED] a FAPE, the Parent filed a DPC and now seeks reimbursement for [REDACTED]’s unilateral placement at [REDACTED] for the 2021/22 school year, along with the reimbursement cost of special transportation and assistive technology (Exhibit A and T @ 90-91).

In an effort to support their position, the parent submitted a documentary exhibit package consisting of twenty-three pieces of evidence (Exhibits A-W), which included affidavit testimony of [REDACTED], Counselor at [REDACTED] (Exhibit V) and [REDACTED] (Exhibit W), transportation provider and further presented [REDACTED], parent as a live witness.

At the hearing, the DOE waived presenting an opening statement and stated it would not present any witnesses to defend against the FAPE allegation, would not submit documentary evidence, and would not be raising any equitable arguments. The DOE further opted not to present a closing statement (T @ 91).

FINDINGS OF FACT AND DECISION

The Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) was enacted with the primary purpose to ensure that students with disabilities have available to them a free and appropriate public education (FAPE) (20 U.S.C. § 1400[d][1][A]; see Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]; Bd. of Educ. v. Rowley, 458 S. Ct. 176, 179-81, 200-01 [1982]; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [2d Cir. 2006]). It is clear that the legislative intent of 20 US Code Section 1412 of the IDEA is to provide a FAPE to all children with disabilities so that these individuals may ultimately lead productive independent lives as adults, to the maximum extent possible (20 U.S.C. Sx 1400[d][1][A]; see Mrs. W v. Tirozzi, 832 F.2d 748 [2nd Cir. 1987]. A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.17; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.22). An IEP is designed as a "written statement" that addresses the educational needs of a child with a disability (20 U.S.C. § 1401[14]; 34 C.F.R. § 300.22; 8 NYCRR 200.1[y]). At the beginning of each school year, a school district is required to have an IEP in effect "for each child with a disability in its jurisdiction" (20 U.S.C. § 1414[d][2]; 34 C.F.R. § 300.323[a]; see also Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 194 [2d Cir. 2005] (finding the district fulfilled its legal obligations by providing the IEP before the first day of school). The student's recommended program must also be provided in the least restrictive environment (LRE) (34 C.F.R. § 300.114[a]; 8 NYCRR 200.6[A][1]). A FAPE is offered to a student when the board of education (a) complied with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. at 176, 206, 207 [1982]). The IDEA directs that, in general, a decision by an impartial hearing officer or state review officer must be made on substantive grounds based on a determination of whether or not the child received a FAPE (20 U.S.C. § 1415[f][3][E][i]). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a FAPE to the child, or (c) caused a deprivation of educational benefits to the child (20 U.S.C. § 1415[f][3][E][ii]; see 8 NYCRR 2005[j][4][ii]). The IDEA mandates that a student with a disability be provided with a FAPE tailored to meet his unique needs and one that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas Cty. Sch. Dist., 580 U.S. ___, 137 S.Ct.988, 999 (2017). A focus on the particular child is at the core of the IDEA. Endrew F., 137 S.Ct. at 999. Under 20 U.S.C. Section 1414(d)(3)(A), the IDEA mandates an IEP team to consider a child’s strengths, weaknesses and deficiencies, as well as the results of the most recent evaluations of the child together with developmental and functional needs of the child. In order to determine the student’s requirements and needs, the team must review and consider evaluations, assessment and information provided by the child’s parents, teachers and service providers and thereon determine the type of program required for the child. 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 R. and Dianne R. 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 R., 2007 WL 2982269 [Oct. 15, 2007].

The case at hand is a tuition reimbursement case and is therefore governed by the holding of the U.S. Supreme Court in Burlington School Comm. v. Dept of Education (471 U.S. 359 [1985]). That case set forth a three-prong test for determining if tuition reimbursement is warranted: (1) were the services offered by the school district inadequate or inappropriate; (2) where the services selected by the parents appropriate; and (3) do equitable considerations support the parents’ claim. Recently enacted state legislation puts the burden of proof for the first prong on the school district and for the second prong on the parent (Chap. 583 of Laws of 2007). Prong I:

In the instant matter, the DOE bears the burden of presentation and persuasion in all allegations raised in the DPC. Herein, the DOE failed to defend its Prong I burden that it provided [REDACTED] a FAPE, failed to present any witnesses or evidence. An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the child’s needs, establishes annual goals and short-term instructional objectives which are related to the child’s educational deficits, and provides for the use of appropriate special education services to address the child’s special education needs. Application of a Child with a Disability, Appeal No 93-12; Application of a Child with a Disability, Appeal No 93-9; Application of a Child with a Handicapping Condition, Appeal No 92-7; Matter of Handicapped Child, 22 Ed Dept Rep 487, March 11, 1983. The SRO has found that allegations that are left unchallenged are deemed as true “unless found to be inconsistent with the evidence in the record.” Application of a Student with a Disability, 01-044 (SRO March 27, 2002). The DOE’s silence at hearing has the effect of conceding every point alleged by the parent against the DOE unless it is inconsistent with the hearing record. Id. Herein, the DOE presented it would not be defending its Prong I burden and conceded a FAPE denial (T @ 20) therefore no further analysis is required.

Prong II:

Having determined that the DOE did not offer the student a FAPE for the 2021/22 school year, I now proceed to evaluating the appropriateness of the parents’ unilateral placement of the student at [REDACTED]. The parent’s failure to select a program approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Florence County Sch Dist Four v. Carter 510 U.S. 7 [1993]). The private placement need not employ certified special education teachers, Carter, supra. The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of the unilateral placement: “No one factor is necessarily dispositive in determining whether parents’ unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only demonstrate that the placement provides educational instruction specially 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”. (Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).

As per submitted documentary evidence [REDACTED] describes itself as a school specifically designed for twice exceptional students who are extremely bright, curious, and motivated, but require support academically and clinically. [REDACTED] represents: “we pride ourselves on how well we individualize attention: rather than expect each child to fit us, we fit ourselves around each of our students” (Exhibit O).

Herein, I credit the evidence and testimony (Exhibits O, R, S and V, and T @ 51-80) submitted by Parent and find it establishes that the placement at [REDACTED] was appropriate as it provided a program and services that were directly related to [REDACTED]’s needs and one in which she was able to make meaningful progress. I find the evidence to substantiate the program at [REDACTED] to offer a small supportive environment with small group instruction with 1:1 opportunity, modifications and supports required by [REDACTED] to make progress.

Based upon the foregoing, I therefore find that [REDACTED] was an appropriate placement for [REDACTED] for the 2021/22 school year. The record reflects [REDACTED] provided a rich supportive environment that correlated well with [REDACTED], that the curriculum was specifically tailored to meet [REDACTED]’s needs and that she received a highly individualized instruction that enabled her to make appropriate progress. Based upon the foregoing, I find that the student made meaningful progress at [REDACTED] for the 2021/22 school year across the board: academically, socially and emotionally. The record reflects that [REDACTED] was a placement that was “specifically designed to meet the unique needs” of the student Frank G, supra and that [REDACTED] has made progress therein (Exhibits I-J).

Transportation and Assistive Technology:

Parent presented a claim seeking reimbursement relief for private transportation costs incurred and cost expended for assistive technology. At hearing, the DOE neither challenged nor raised any dispute as to either requested relief. Moreso, cross-examination of parent did not generate a material challenge to parent assertions as to reimbursement. As such, both reimbursement requests are granted. Prong III: Having found [REDACTED] an appropriate placement, I now consider equitable considerations, the final criterion for a reimbursement award. In weighing the equities, “the critical consideration, as the Court sees it, is whether they have cooperated in good faith to attempt to develop an IEP to the maximum extent possible, Schaffer, supra. There is nothing in the record to show that the parents were anything other than cooperative. The DOE neither presented any evidence or testimony nor raised any equity considerations regarding the equity considerations for the 2021/22 school year. All indications are that the Parent cooperated with the DOE and did not interfere in any way with the DOE’s obligation to provide a FAPE for the Student for the 2021/22 school year. [REDACTED]’s Parents timely put the DOE on notice of [REDACTED]’s unilateral placement and their intent to seek reimbursement (Exhibit N).

I find (1). that the DOE failed to offer the student a FAPE for the 2021/22 school year, (2). that the unilateral placement of the student at [REDACTED] was appropriate (3). that the program at [REDACTED] was “reasonably calculated” to provide [REDACTED] with meaningful educational benefits and (4). that equitable considerations weighed in favor of the parents’ request for reimbursement for all costs associated with the placement of the student at [REDACTED] for the 2021/22 school year. Based upon the foregoing,

ORDER

1. It is hereby ordered that within thirty (30) days of receipt of this Order, the Department of Education shall directly fund/reimburse the cost of the student's tuition at [REDACTED] for the 2021/22 school year, in the amount of $87,950.00. All payments shall be supported by the presentation of appropriate documentation;

2. It is hereby ordered that the DOE shall within 30 days provide reimbursement to the parent in the amount of $9,275.35 for transportation costs incurred and further provide direct funding to [REDACTED] in the amount of $9,275.35 for transportation costs incurred for the 2021/22 school year All payments shall be supported by the presentation of appropriate documentation; and

3. It is hereby ordered that the DOE shall within 30 days provide reimbursement to the parent in the amount of $1,275.99 for costs incurred for assistive technology.

Dated: September 10, 2023

Maria R. Dispenza

MARIA R. DISPENZA, ESQ.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

PLEASE TAKE NOTICE

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.

DOCUMENTATION ENTERED INTO THE RECORD ON MAY 17, 2023

A. Parent: Due Process Complaint, 12/19/22 -6pp

B. IEP, 02/02/21 -21pp

C. Letter from [REDACTED], 01/21/22 -3pp

D. Letter from [REDACTED], 03/01/21 -8pp

E. Request for Medical Accommodations to be Completed by Treating Physician, 06/04/21 -13pp

F. Email from [REDACTED], CSE Chair re: Special Transportation Request, 01/12/22 -17pp

G. Email from [REDACTED] (DOE), 01/27/22 -2pp

H. Email from [REDACTED] (DOE), 01/27/22 -5pp

I. Email from [REDACTED] (DOE), 02/03/22 – 1pp

J. Email from [REDACTED], CSE Chair attaching letter re: IEP Amendment, Transportation Accommodations, 07/19/22 -3pp K. Private Transportation Receipts for Reimbursement, 09/20/21 to 06/22/22 – 68pp L. Driver’s License – [REDACTED], N/A -1pp M. Assistive Technology Receipt for Reimbursement, 02/15/22 -3pp

N. Ten Day Notice, 08/21/21 -3pp

O. [REDACTED] School Program Description 2021/22, N/A -13pp

P. [REDACTED] School Enrollment Contract 2021/22, 01/20/21 -6pp

Q. Affidavit of Tuition, 04/023/21 -1pp

R. Academic Progress Report, 10/30/21-5pp Fall

S. Academic Progress Report, 4/13/22 -6pp Spring

T. 2021/22Class Schedule, N/A -1pp U. Resume of [REDACTED], N/A 1pp

V. [REDACTED] Affidavit, 05/10/23 -4pp

W. [REDACTED] Affidavit, 05/10/23 -2pp