NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
NAMES AND TITLES OF PERSONS WHO APPEARED
Name Title For Date
[REDACTED] Attorney PARENT 02/10/23 (V)
[REDACTED] Attorney PARENT 03/29/23 (V)
[REDACTED] Attorney PARENT 05/31/23 (V)
[REDACTED] Parent PARENT 05/31/23 (V)
[REDACTED] Witness PARENT 05/31/23 (V)
[REDACTED] DOE Representative DOE 05/31/23 (V)
DOCUMENTATION ENTERED INTO RECORD
A. Number/Letter Title Dated For # of Pages Impartial Hearing Request 12/27/22 PARENT 06 pages
B. Letter from Parent to 06/17/21 PARENT CSE Chairperson with Email Confirmation 06 pages
C. Letter from Parent to 08/30/21 PARENT CSE Chairperson with Email Confirmation 06 pages
D. Program Description N/A PARENT 04 pages
E. '21/'22 Class Schedule ‘21/’22 PARENT 01 pages
F. Educational Progress 06/2022 PARENT Report 06 pages
G. Speech Therapy Progress 06/2022 PARENT Report 03 pages
H. Occupational Therapy 02/12/22 PARENT 05 Progress Report I Physical Therapy 02/10/22 PARENT 03 Progress Report
J. Enrollment Contract and 07/18/21 PARENT Addendum 06 pages
K. Tuition Affidavit 07/10/22 PARENT 01 pages
M. L U.S. Individual Income 2021 PARENT 03 Tax Return Affidavit of Testimony of 05/23/23 PARENT Educational Director 11 pages
N. Affidavit of Testimony of 05/23/23 PARENT Parent 05 pages
On. January 26, 2023, was appointed as the Impartial Hearing Officer (“IHO”) to conduct a hearing pursuant to the Individual with Disabilities in Education Act (“IDEA”), 20 United States Code, Section 1415(f)(1), concerning a dispute involving the special education program of an ten (10) year old student attending a private school and the New York City Department of Education (“DOE”) District [REDACTED]. The Parents alleged a denial of FAPE for the 2021-2022 school year The Parent filed a Due Process Complaint (“DPC”) on or about December 27, 2022. The parent alleges that the DOE generally failed to assess the child in all areas of his suspected disability. The Parents allege that the CSE failed to conduct a proper review for the student and make appropriate recommendations for their educational planning and that the student’s IEP was procedurally and substantively flawed and denied the student a FAPE for the 2021-2022 school year.
At. the impartial hearing, the Parent seeks the following relief: • A finding that the student was denied a FAPE for the 2021-2022 school year. • A finding that the private school was an appropriate placement for the student for the 2021-2022 school years. DOES’ DEFAULT The DOE failed to call any witnesses to testify on its behalf and did not submit any documents in evidence. The DOE did not submit any evidence to show that they had replied to the Parents e-mail informing the District that they wished to re-enroll the student for the school year. (Parent’s-I) The DOE has conceded liability by failing to present a case and meet its burden under the law. New York State law has placed the burden of production and persuasion 2021-2022 at. an impartial hearing on the school district, unlike states which align the burden of production and persuasion consistent with Schaffer v. Weast, 546 U.S. 49, 58-62 [2005} The undersigned finds that the DOE failed to adhere to the requirements of the law, has denied the student in this case a FAPE for the 2021-2022 school year and that the Parent may be entitled to the proven relief she has requested. THE PARENT’S CASE The Parent had (2) witnesses testify on their behalf, who testified on direct and some were also cross examined by the District. The Parent also submitted (14) documents in evidence. In sum, substance and relevant part, the testamentary and documentary evidence for and against the Parent’s case is incorporated in the decision below. DOE DEFAULT Whereas under the IDEA, the burden of persuasion in an administrative hearing is placed upon the party seeking relief. (See Schaffer v. Weast, 546 U.S. at 59-62) On August 15, 2007, the New York State Legislature amended the Education Law to place the burden of proof upon the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement would continue to have the burden of proof regarding the appropriateness of such placement. (See Educ. Law § 4404[1][c], as amended by Ch. 583 of the Laws of 2007) The amended statute took effect for impartial hearings commenced on or after October 14, 2007. (SRO No. 08-016); and As noted above, the DOE’s failure to present a case at the hearing is a concession that it denied the student a FAPE for the 2021-2022 school year and that if the Parent meets her burden under Schaffer v. Weast, the Parent is entitled to the proven relief she seeks. This leaves, as the primary issue to be resolved through impartial hearing, what relief and/or compensatory education remedy, if any, is available and appropriate to remediate the denial of a FAPE. (SRO No. 17-033)
It. is noted that the DOE was required under the due process procedures set forth in. New York State law, to address its burdens in the due process hearing context by describing its views, based on a fact-specific inquiry set forth in an evidentiary record, regarding an appropriate relief and/or compensatory education remedy that most reasonably and efficiently could place the student in the position that he would have been but for the denial of a FAPE. (See Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 457 [2d Cir. 2015], cert. denied, 136 S. Ct. 2022 [2016], quoting Reid v. Dist. of Columbia, F.3d 516, 524 [D.C. Cir. 2005] [noting that the "'ultimate award [of compensatory education] must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place'"]) When, as here, the DOE does not present any case at the 401 pages
at. hearing, the hearing, the hearing process essentially becomes an “inquest” as to the appropriate relief. The DOE has conceded liability by failing to present a case and meet its burden under the law. New York State law has placed the burden of production and persuasion an impartial hearing on the school district, unlike states which align the burden of production and persuasion consistent with Schaffer v. Weast, 546 U.S. 49, 58-62 [2005]. It is not an IHO's responsibility to craft the DOE’s position regarding the primary issue in the case, for the denial of FAPE. The undersigned finds that the DOE failed to adhere to the requirements of the law, has denied the student in this case a FAPE for the 2021-2022 school years and that the Parent may be entitled to the relief she has requested. FINDINGS OF FACTS & DECISION Two purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) 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. (See 20 U.S.C. § 1400[d][1][A]-[B] and Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]) A FAPE is offered to a student when (a) the DOE complies 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. (See Rowley, 458 U.S. at 206-07 and Cerra v. Pawling Cent. Sch. Dist., F.3d 186, 192 [2d Cir. 2005]) While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. (See A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003] and Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]) Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student'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 student, or (c) caused a deprivation of educational benefits. (See 20 U.S.C. § 427 pages
An. 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008] and Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]) appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs (34 C.F.R. § 300.320[a][1]; NYCRR 200.4[d][2][i]), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services. (See 34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; SRO No. 07-018; 06-059; 06-029; 04-046; 02-014; 01-095 and 93-09) Subsequent to its development, an IEP must be properly implemented. (See 8 NYCRR 200.4[e][7] and 8 pages
SRO No. 08-087)
The DOE 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. (See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993] and Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]) In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA. (See Burlington, 471 U.S. at 370-71; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007] and Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]) "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE. (See Burlington, 471 U.S. at 370-71; 20 U.S.C. § 1412[a][10][C][ii] and 34 C.F.R. § 300.148)
The New York State Legislature amended the Education Law to place the burden of production and persuasion upon the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement. (See Educ. Law § 4404[1][c], as amended by Ch. 583 of the Laws of 2007) The amended law took effect for impartial hearings commenced on or after October 14, 2007; therefore, it applies to the instant case. (See SRO No. 08-016)
A private school placement must be "proper under the Act." (See Carter, 510 U.S. at 12, 15 and Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs. (See Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129 and Matrejek, 471 F. Supp. 2d at 419) A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement. (See Carter, 510 U.S. at 14) The private school need not employ certified special education teachers or have its own IEP for the student. (See Carter, 510 U.S. 7; SRO No. 08-085; 08-025; 08-016; 07-097; 07-038; 02-014 and 01-105) Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate." (See Gagliardo, 489 F.3d at 112 and M.S. v. Bd. of Educ., 231 F.3d 96, 104 [2d Cir. 2000]) "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement….'" (See Gagliardo, 489 F.3d at 112; Frank G. v. Bd. of Educ., 459 F.3d at 364 [2d Cir. 2006] [quoting Rowley, 458 U.S. at 207 and identifying exceptions]) Parents need not show that the placement provides every special service necessary to maximize the student's potential. (See Frank G., 459 F.3d at 364-65) When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits." (See Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]]) A "private placement is only appropriate if it provides 'education instruction specifically designed to meet the unique needs of a handicapped child.'" (See Gagliardo, 489 F.3d at 115 [emphasis in original], citing Frank G., 459 F.3d at 365 quoting Rowley, 458 U.S. at 188-89)
The IDEA allows that tuition reimbursement may be reduced or denied if parents do not provide “notice” of the unilateral placement either at the most recent CSE meeting prior to removing the child from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense." (See 20 U.S.C. § 1412[a][10][C][iii][I] and 34 C.F.R. § 300.148[d][1]) This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools." (See Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]) Although a reduction in reimbursement is discretionary, courts have upheld the denial of tuition reimbursement in cases where it was shown that parents failed to comply with this statutory provision. (See Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); SRO No. 07-133; 07-120; 07-115; 07-098; 07-079; 07-075; 07-038; 07-032; 06-122; 06-069; 06-057; 06-042; 06-041; 06-035; 05-092 and 04-022)
The final criterion for a reimbursement award is that the parent's claim be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA. (See Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000] and Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]) Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters." (See Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]) With respect to equitable considerations, the IDEA provides that tuition reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, fail to engage with potential placements offered by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. (See 20 U.S.C. § 1412[a][10][C][iii]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181 at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 2006 WL 2335140 [2d Cir. Aug. 9, 2006] and Voluntown, 226 F.3d at n.9)
In the absence of evidence demonstrating that petitioners failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a claim of tuition reimbursement. (SRO No. 04-049) In sum, substance and relevant part, the testamentary and documentary evidence in this case is as follows:
The Parents witness, [REDACTED], the Educational Director at the student’s private school testified via affidavit on direct as follows about the students’ progress at school and curriculum. 28. At [REDACTED], we collect data constantly regarding student progress in various domains and analyze the data on a consistent basis to ensure that students are progressing and that programming changes are not needed. We also issue written progress reports. In my role, I collaborate with students' teachers to create students' educational progress reports and I review the educational reports, as well as students' progress reports in other domains. This was all true of the 2021-2022 school year as well. Exhibit F is an accurate copy of [REDACTED] Educational Progress Report for the 2021-2022 school year and describes progress that she made during the school year.
29. I have had the opportunity to review the March 23, 2021 IBP created for [REDACTED] and based upon what I know about [REDACTED] and her needs, that IEP was not appropriate for her for the 2021-2022 school year. Given her high degree of distractibility, sensory needs, poor frustration tolerance, and difficulty with selfregulation and behavior, [REDACTED] needed 1:1 teaching and 1:1 support throughout the day, incorporating ABA, in order to learn and to make progress. A class of 6 students and only 1 teacher and 1 paraprofessional could not have provided this level of support. [REDACTED] also needed to have appropriate peers who were verbal and social; I would have been concerned about the level of peers in the 6:1+1 program recommended. It would have been highly inappropriate for [REDACTED] to be placed with non-verbal peers or peers lower functioning than she was. She would not have had appropriate peer models to develop her social skills with and would have lacked social motivation and would have felt very badly about herself. It is also concerning that the IEP specifies that [REDACTED] was to be in a 6:1+1 class only for core academic subjects and does not indicate the setting she would be in for the remainder of her school day. The IBP provides that [REDACTED] adaptive PE would take place in a general education gymnasium, which would have been an overwhelming environment for [REDACTED].
30. The IEP also fails to provide for adequate management needs and supports for [REDACTED]. Although the management needs included some helpful strategies, to be effective these strategies for learning would have needed to be provided with 1:1 instruction using an individualized curriculum, an individualized behavioral plan, and ABA-based instruction and behavioral intervention, things that the IBP failed to provide. The management needs also fail to provide for access to a sensory gym, which [REDACTED] needed to stay regulated and available for learning during her school day. The IEP also inaccurately states that [REDACTED] did not require strategies to address her behaviors that interfere with her learning and fails to provide for a behavior intervention plan or for adequate behavioral support. Without an individualized behavioral plan and appropriate strategies to address behaviors and to promote motivation, [REDACTED] behavioral needs would not have been addressed and she would not have been able to stay engaged and available for learning.
31. The IEP does not include adequate or appropriate goals for [REDACTED]. The short term objectives included for the reading goal were not adequate for [REDACTED], as the short term objectives did not address decoding skills. The math goal included did not include any short term objectives for working on computation skills, but instead just includes objectives for work problems. Additionally, the objectives for math lack context for what level of content is meant to be worked on.
The IEP goals do not adequately target expository writing. The IEP goals also provided that [REDACTED] progress should be measured only one time per quarter, which would not have been sufficient to ensure that [REDACTED] was progressing throughout the school year. In addition, due to the IEP's failure to provide for 1:1 teaching and ABA, as well as a behavioral plan, [REDACTED] would not have been able to meet the goals and objectives included in the IEP.
32. In my professional opinion, [REDACTED] appropriately addressed [REDACTED] needs for 2021- 2022 school year. Our program provided her with the 1:1 teaching and behavioral and social/emotional support, using the principles of ABA, that she needed to gain new skills and make progress, and otherwise appropriately addressed her presenting needs in her areas of challenge. With the individualized curriculum and supports we provided, [REDACTED] made progress across all domains during the school year. (Parent’s –“M” 8-11)
The parent’s witness was briefly cross examined by the DOE as to the child’s program and classroom setting.
The Parents evidence shows that the student has made academic progress while enrolled in the private school for the 2021-2022 school year. The students’ educational records and progress reports are submitted into evidence. (F,G,H,I)
APPROPRIATENESS OF THE RELIEF SOUGHT
I now turn to the question of whether the DOE should be required to reimburse and/or pay for the private educational services and relief requested for the student, because the services offered by the DOE were inadequate or inappropriate, and the relief sought and services selected by the Parents are appropriate and equitable considerations support the Parent’s claim. (Burlington, Florence and Cerra, Supra) The Parent need only demonstrate that the requested services are specially designed to meet the unique needs of the student, supported by such services as are necessary to permit her to benefit from the instruction. (See Gagliardo, 489 F.3d at 112; see Frank G., 459 F.3d at 364-65)
The Parents evidence shows that the student has made academic progress while enrolled in the private school for the 2021-2022 school year. The students’ educational records, progress reports and behavioral records are submitted into evidence. (F,G,H,I)
When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits." (See Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003]) (emphasis added) This standard is well below those other standards of review in the law such as “beyond a reasonable doubt”, “clear and convincing evidence”, “preponderance of the evidence”, “substantial evidence” or even perhaps “rational basis.” The record, as accurately summarized by the parties above and adopted in this decision and order, supports a finding that the decision to place the student at the private school was” reasonable” as an appropriate placement for the student’s 2021-2022 school year.
There is nothing in the record that supports a finding that the Parent has not cooperated with the DOE.
NOW therefore, it is hereby
ORDERED that the DOE denied the student a FAPE for the student’s 2021-2022 school year and that upon its receipt of reasonably satisfactory proof of services having been rendered, the DOE shall pay/fund directly for the cost of the student’s tuition and related services, at the private school for the time the student attended the private school during the 2021-2022 school year; and it is further
ORDERED that within 30 days the CSE shall forthwith reconvene to produce a new IEP for the student that considers all of the student’s available evaluations and any related information and produce a new IEP for the student’s 2022-2023 school year; and it is further
ORDERED that any of the other relief sought by the Parent not addressed by this “Final Order” is found to be either resolved by the parties, withdrawn by the Parent, outside the scope of the IHO’s authority or unsupported by the record.
Sharifa Milena Nasser
DATED: September 11, 2023
Queens, New York Sharifa Milena Nasser - I.H.O.
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 L[2nd PRIVATE SCHOOL INITIALS] 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. (Rev. 07/09/20)