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CASE NUMBER: 593857 - NYC: 244090
FINDINGS OF FACT AND DECISION
Case Number: 244090
Student’s Name[1]: [REDACTED](“Student”)
Date of Birth: [REDACTED]
School District: [REDACTED]
Hearing Requested by: [REDACTED] (“Parent”)
Request Date/Date Complaint Filed: December 20, 2022
Dates of Hearing: June 2, 2023, July 31, 2023, August 14, 2023, August 24, 2023, August 28, 2023 and September 13, 2023
Actual Record Closed Date: September 13, 2023
Date of Decision: September 27, 2023
Date of Distribution if Different than Decision Date:
Hearing Officer: Lisa S. Rusk, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 2, 2023
For the Student:
[REDACTED], Attorney
For the Department of Education:
[REDACTED], District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 31, 2023
For the Student:
[REDACTED], Attorney
[REDACTED] Parent
[REDACTED], Academic Director
For the Department of Education:
[REDACTED], District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 14, 2023
For the Student:
[REDACTED], Attorney
[REDACTED], Parent
For the Department of Education:
[REDACTED], District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 24, 2023
For the Student:
[REDACTED], Attorney
For the Department of Education:
[REDACTED], District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 28, 2023
For the Student:
[REDACTED], Attorney
[REDACTED], Parent
[REDACTED], Therapist
For the Department of Education:
[REDACTED], District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 13, 2023
For the Student:
[REDACTED], Attorney
For the Department of Education:
[REDACTED], District Representative
INTRODUCTION AND PROCEDURAL HISTORY
This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parent’s Due Process Complaint (“DPC"), dated December 20, 2022. The record does not contain any evidence of a response by [REDACTED] (hereinafter referred to as “the District”). This IHO was appointed on December 22, 2022. A prehearing conference was held on January 23, 2023. A status conference was held on February 28, 2023. An amended DPC was accepted on March 1, 2023, seeking tuition reimbursement for two unilateral placements during the 2021-22 school year (Ex. P-A)[2]. A prehearing conference on the amended DPC took place on April 5, 2023. At the request of the parties, status conferences were held on April 19, 2023 and May 9, 2023. At the request of the District, the IHO executed subpoenas for both of the programs at issue and forwarded to the District on July 3, 2023 and again on July 26, 2023. Hearing dates were held on June 2, 2023, July 31, 2023, August 14, 2023, August 24, 2023, August 28, 2023 and September 13, 2023. [REDACTED] appeared on behalf of the Parent. [REDACTED] appeared for the District.
Five extensions of the compliance date were granted on the record at the request of the parties to enable time to attempt to negotiate a settlement, procure witnesses, issue subpoenas, submit additional exhibits and deliver closing statements. On June 2, 2023, the District entered into evidence exhibits 1-3.[3] Parent Exhibits A-I[4] were entered on June 2, 2023. Parent Exhibits J-Q were entered on July 31, 2023. New Parent Exhibit F and Exhibit R were entered into evidence on August 28, 2023. Parent Exhibit S was provided via email and entered into evidence at the request of the IHO (T:219). Three witnesses testified on behalf of the Student, including the Student’s Parent. The District did not present any witnesses. The parties made closing statements on the record on September 13, 2023. The record was closed on September 13, 2023.
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. The amended DPC refers to a claim under Section 504 of the Rehabilitation Act of 1973, however, the Parent affirmed on July 31, 2023 that no distinct claim was being raised pursuant to Section 504 (T:74).
BACKGROUND
The Student was REDACTED years old at the time of the filing of the DPC and was in receipt of his high school diploma. The Student began receiving special education services in first grade in a nonpublic school. His academic performance improved in middle school, and he started high school in the District at [REDACTED] (hereinafter referred to as [REDACTED] ) (T:168-69). At that time he no longer had an Individualized Education Program (“IEP”). He began to significantly struggle his sophomore year and continued to have difficulty during his junior year. He was not referred by District staff back to the Committee on Special Education (“CSE”) (T:169-70). According to the amended DPC, the Parent sent a referral to the CSE on May 7, 2021(Ex. P-A-2). At the time, the Student had been unilaterally removed from his public high school placement and placed at the [REDACTED] program in [REDACTED] (T:175-76). From there the Parent placed him at the [REDACTED] program in [REDACTED]. After [REDACTED], he was placed in [REDACTED] program, also in [REDACTED] on August 5, 2021 through September 28, 2021 (T:178). From [REDACTED], he was placed by the Parent in [REDACTED] (hereinafter referred to as [REDACTED] ) on September 28, 2021. He graduated high school with a high school diploma and was discharged on April 5, 2022 (Ex. P-J-1; T:155).
ISSUES
The Parent alleges in the DPC that the District failed to timely evaluate and hold an initial CSE meeting to develop an IEP for the Student following the May 7, 2021 referral back to the CSE (Ex. P-A). Although it did introduce an IEP into evidence, during her opening statement on July 31, 2023, [REDACTED] indicated that the District was not presenting a Prong I case and would not be presenting any evidence or witnesses in support of the District’s IEP (T:70). The Parent seeks reimbursement for both unilateral placements at [REDACTED][5] (which includes an academic portion at [REDACTED] ) and [REDACTED] (T:72).
FINDINGS OF FACT
The Parent testified to the Student’s complicated educational history. However, he began having issues with severe emotional outbursts, focusing, and frustration tolerance in the first grade. At that time, he received services, including a full-time paraprofessional and counseling. He also received counseling from a private therapist outside of school (T:167-68). His emotional state improved, although he continued to receive a fair amount of support. His executive functioning and writing challenges really improved during the middle school years. The Parent requested that he no longer receive special education services (T:196-97).
He began freshman year at [REDACTED] and did well. He began struggling significantly during sophomore year and required a tremendous amount of support. In the spring of his sophomore year, he began attending school at home due to COVID, and he improved a bit (T:169-70). During his junior year, he became more isolated and increasingly volatile and aggressive, culminating in an incident in April of 2021 where he opened a window at home and threatened to jump and was taken to the hospital (T:171-73).
The District did not make a referral to the CSE, but the Parent re-referred the Student to the CSE via email on May 7, 2021 and stated his consent to any evaluations the District deemed necessary. The Parent advised the CSE that the Student was in residence at [REDACTED], a short term therapeutic treatment program in [REDACTED] and advised that the Student would require a therapeutic residential school (T:174, Ex. P-S). From there, the Parent enrolled him in the [REDACTED] program in [REDACTED] for approximately 8 to 10 weeks (T:176-77).
Following [REDACTED], the Parent placed the Student at [REDACTED] beginning August 5, 2021 (T:178). At that time the Student, is Parent and [REDACTED] and [REDACTED] staff felt the Student was ready for a step-down program (T:180-81). The Parent testified that a portion of the [REDACTED] program was paid by insurance (T:182-83).
On August 11, 2021, the CSE met with the Parent present, classified the Student with an emotional disturbance and recommended a twelve-month New York State Education Department approved residential school (Ex. D-1-1,18). The CSE noted that the Student was currently attending the [REDACTED] program (Ex. D-1-2). The only District evaluation in evidence is an August 11, 2021 “classroom observation” that states that the student is currently at [REDACTED] (Ex. D-3). The Parent testified that the District never recommended a specific residential placement (T:184).
The Parent testified that the Student started off well at [REDACTED] but began experiencing difficulties shortly thereafter because he did not have the skills he needed to adjust to the less restrictive setting. He continued to have strong emotional outbursts and potential risk for self-harm (T:185). It was determined that the program was not appropriate for him, and he was moved to [REDACTED] where there was a higher level of care, more restricted access to technology and more supervision. He received more therapy hours and staff were available 24 hours (T:186-89). According to the Parent, [REDACTED] dialectical behavioral therapy (“DBT”) was really effective for the Student (T:190). At [REDACTED], his emotional regulation and interpersonal relationships improved (T:191). He successfully graduated from high school, moved into a step-down program and started college (Ex. P-R-1-2; T:192). All insurance claims for payment for [REDACTED] were denied (T:194).
By letter, dated August 24, 2021, the Parent formally advised the CSE of the Student’s unilateral placement at [REDACTED] and intent to seek funding (Ex. P-B, T:188). [REDACTED] the Academic Director at [REDACTED] offered her direct testimony via written statement (Ex. P-Q). [REDACTED] is certified in secondary education 6-12 and special education K-12. [REDACTED] is a treatment center with residential support for approximately 24 males ages 15-18 and 6 males over the age of 18. The students at [REDACTED] typically struggle with anxiety, depression, ADHD, processing issues and family and personal relationships. The teaching staff have varied credentials including teacher certification, master’s degrees in education and previous job experience in the treatment field. The therapists are master’s level licensed clinical social workers. Program specific training is done on a biweekly basis (Ex. P-Q-1)
The Student’s program focused on emotional regulation and managing his “BPD” traits. Goals and objectives worked on distress tolerance, interpersonal effectiveness, depression and anxiety, and social /emotional boundaries and relationships. He was involved in group sessions 4 days per week led by clinicians. He participated and engaged in group therapy but had more limited progress in individual sessions. He required 6 earned credits for a high school diploma. He had two different teachers, [REDACTED], with a master’s in education and [REDACTED], with a bachelor’s degree and background in wilderness therapy (Ex. P-Q-2).
The Academic Director reported that the Student made good classroom progress at [REDACTED] when he was initially enrolled, but began to lose engagement and would try to sleep during class and read personal books to avoid class engagement. His behaviors, though not disruptive, prevented his progress in the classroom. His progress began to devolve about halfway through his less than 2 months stay. There were several incidents with students and staff where he reacted poorly to established boundaries. It was thought he might become a danger to peers and might require a higher level of care. Ultimately, it was determined by the program that he required a different treatment program with intense supervision and management of behaviors. Surprisingly, in less than 2 months he was able to complete his US Government class and earn a quarter credit in both English 12 and sociology[6] (Ex. P-Q-3).
The Student’s therapist at [REDACTED], submitted his direct testimony via letter dated August 11, 2023 (Ex. P-R). The therapist, a [REDACTED] licensed clinical mental health counselor, testified that he has been employed at [REDACTED] since 2019. He holds a master’s degree in educational psychology with a focus in clinical mental health counseling (T:157). Elevations is a residential treatment center that serves adolescents ages 13-18 with mental health and emotional disorders, academic and behavioral issues. Therapeutic services are provided by trained clinical professionals. Students participate in an educational environment led by certified educators licensed by the [REDACTED] State Board of Education and endorsed in their subject areas. All staff participate in ongoing professional development and monthly training.
The Elevations therapist testified that to his knowledge while the Student was at [REDACTED], he struggled interpersonally with staff members and peers, he reportedly was involved in some theft when in the community and overall needed more support than that program offered (T:149). Elevations offered a higher level of care including more clinical contact and supervision (T:159). The therapist testified while at [REDACTED], the Student displayed a willingness to engage in therapy and worked on learning and implementing various DBT skills, especially in the area of emotion regulation and interpersonal effectiveness. He participated in weekly individual and family therapy sessions. He participated in groups led by licensed mental health therapists four days a week and was grouped together with other peers based on therapeutic needs and dorm placements (Ex. P-R-1). Academically, he worked through interpersonal struggles and used effective coping skills to attain passing grades (T:147-48; Ex. P-I).
While at [REDACTED] , the treatment team determined that the Student progressed in the program. He was no longer having emotional outbursts and was able to effectively apply coping skills to various interpersonal situations (T:146). Based upon his improved ability to tolerate distress and regulate his emotions, he was recommended for discharge to a lower level of care and post-high school education based upon his progress (Ex. P-R-2, T:149).
CONCLUSIONS OF LAW
The Individuals with Disabilities Education Act (IDEA) provides that children with disabilities are entitled to a 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 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, 137 S.Ct. 988 (2017). If a procedural violation has occurred, relief is warranted only if the procedural violation affected the student's right to a FAPE. 8 NYCRR §200.5[4]; J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 (2d Cir. 2000).
In New York State, 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 or payment for services 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)). It is well settled that 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]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]).(Application of a Child with a Disability, SRO Appeal No. 22-154).
For students suspected of having a disability, a school district is required to respond within 10 school days upon receipt of a referral for evaluation (8 NYCRR 200.4[a][2][iv]). After seeking and receiving parental consent for evaluation, the school district must initiate an individual evaluation of a student and complete the evaluation within 60 days of receipt of consent (8 NYCRR 200.4[b][1]). The CSE must consider the evaluative material and determine if the student is eligible for special education services as a student with a disability. The CSE then shall provide a recommendation to the board of education within 60 school days of the receipt of consent to evaluate (8 NYCRR 200.4[d]). This is in addition to the school district’s affirmative “Child Find” obligation under 8 NYCRR 200.2(a)(7).
For students found eligible for special education services, a board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her 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. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School Dist. Four v. Carter, 510 US 7 [1993]). If the District is unable to prove that it met its burden under Prong I of the three prong Burlington/Carter test, the Parents in order to meet their burden must establish by a preponderance of the evidence, that the unilateral placement provided “educational instruction specifically designed to meet the unique needs of the student” (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 [2d. Cir. 2007]. However, the private school placement “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements” (Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d. Cr. 2006]. The private placement need not provide certified special education teachers or an IEP. Parental placements are not subject to the same mainstreaming requirements as a school district placement. The private school placement must be reasonably calculated to enable the child to receive educational benefits, and must be likely to produce progress, not regression.
The standard to apply is whether "[the] unilateral private placement ... provides educational instruction specifically designed to meet the unique needs of a handicapped child" Gagliardo, 489 F.3d at 115):
“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).
Finally, under the third prong of the Burlington/Carter test, equitable factors must weigh in the favor of the parent in order to qualify for an award of tuition reimbursement.
ANALYSIS
The District failed to demonstrate that it offered the Student a FAPE for the 2021-22 school year. There is no evidence that the District evaluated or attempted to evaluate this Student. Although the District classified the Student and developed an IEP, it never made a placement recommendation. I find that the District has admittedly failed to meet its burden under Prong I of the Burlington/Carter test (T:70).
Regarding the [REDACTED] program, the Parent has not met his burden of proof that the [REDACTED] program provided the Student educational instruction specifically designed to meet his unique needs. [REDACTED]’s association with [REDACTED] is unclear. One of his teachers, [REDACTED], testified to by the Academic Director left a couple of weeks after the Student arrived (Ex. P-M-1). There is no evidence regarding the qualifications of the replacement teacher or how he/she addressed his needs. A September 15, 2021 report by teacher [REDACTED] refers to him sleeping in class and reading a personal book during school time (Ex. P-O-1). It states further that the Student will not read his book or sleep on his desk “unless he is given permission by his teacher”, rather than setting forth constructive ways to address the behaviors (Ex. P-O-2). It is undisputed that the Student’s social/emotional state declined during his time at the program. While the Parent may have acted in good faith and in consultation with his own professionals in placing the Student at [REDACTED], it became apparent shortly after he entered that the program was not appropriate to meet his needs. I find that the Parent has not met his burden under Prong II of the Burlington/Carter test regarding the [REDACTED] program.
Turning to the [REDACTED] program, based upon a thorough review of the testimony and evidence as fully set forth above, I find the Parent met his burden that [REDACTED] provided the Student with specific instruction to meet his unique special education needs during the 2021-22 school year. The uncontroverted testimony reflects that [REDACTED] provided him with specific strategies and supports to address both his academic and social-emotional needs. It is undisputed that the Student made progress during his time there and was able to graduate with a high school diploma, move to a less restrictive placement and pursue a post-graduate college experience. I find that [REDACTED] was an appropriate unilateral placement.
There is no evidence in the record that the Parent did not cooperate with the District or thwarted the CSE process in any way. In addition, the District did not raise any equitable arguments in either its opening statement or in its closing statement on the record (T:69-70; 235-238; 239-40). I find no basis to reduce or deny the award of tuition for the [REDACTED] program.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
1. ORDERED that the Parent’s request for reimbursement for tuition for the [REDACTED] program for the 2021-22 school years is denied; and it is further
2. ORDERED that the District shall reimburse the Parent for the costs of the [REDACTED] tuition for the 2021-22 school year upon Parent’s submission to the District of proof of attendance and payment.
SO ORDERED.
DATED: September 27, 2023
Impartial Hearing Officer
Lisa Rusk
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.
APPENDIX A – REDACTION IDENTIFICATION PAGE
APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD
DISTRICT EXHIBITS
| Number | Document | Date | Number of Pages |
|---|---|---|---|
| 1 | Individualized Education Program (IEP) | 08.11.2021 | 20 |
| 2 | Prior Notice for Placement (PWN) | 08.13.2021 | 12 |
| 3 | Classroom Observation | 08.11.2021 | 1 |
PARENT EXHIBITS
| Exh. # | Description | Date | Pages |
|---|---|---|---|
| A. | Amended Request for Impartial Hearing | 2/28/2023 | 2 |
| B. | Notice of Unilateral Placement | 8/24/2021 | 2 |
| C. | [REDACTED] Admissions Agreement | 8/3/2021 | 17 |
| D. | [REDACTED] Affidavit of Payments | 1/11/2022 | 1 |
| E. | [REDACTED] School Schedule | Undated | 1 |
| F. | [REDACTED] Attendance Record | 8/5/2021 – 9/28/2021 | 1 |
| G. | [REDACTED] Enrollment Agreement | 9/24/2021 | 7 |
| H. | [REDACTED] Program Overview | Undated | 1 |
| I. | [REDACTED] Class Schedule | Undated | 2 |
| J. | [REDACTED] Discharge Summary | 4/25/2022 | 7 |
| K. | [REDACTED] Payment Affidavit | 1/18/2023 | 1 |
| L. | [REDACTED] Treatment Plan | 8/5/2021 | 2 |
| M. | [REDACTED] Academic Summary | 8/19/2021 | 2 |
| N. | [REDACTED] Academic Plan | 9/14/2021 | 3 |
| O. | [REDACTED]Academic Summary | 9/15/2021 | 2 |
| P. | [REDACTED]Program Description | Undated | 3 |
| Q. | Affidavit of [REDACTED] | 7/22/2023 | 3 |
| R. | Affidavit of [REDACTED] | 8/11/2023 | 2 |
| S. | Emails from [REDACTED] | 5/7 - 5/9/2021 | 2 |
Footnotes
[1] Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.
[2] Exhibits shall be referred to as follows: “P” for Parents’ Exhibit; “D” for District’s or Department’s Exhibits; and “IHO” for Impartial Hearing Officer’s Exhibits. Exhibits will be followed by the exhibit number and page numbers as needed and appropriate.
[3] A more detailed list of the admitted exhibits is attached as Appendix B, “Documentation Entered Into the Record,” to this decision.
[4] Original Parent Exhibit F was withdrawn on July 31, 2023, at it referred to another student.
[5] The Parent testified and the documentary evidence indicated that most of the cost of [REDACTED] was covered by insurance (T:182, 213; Exhibit P-D)
[6] The Student’s daily schedule and academic summaries do not mention sociology (Exs. P-E, M, N, O and P).