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FINDINGS OF FACT AND DECISION
Case Number: 594341
Student’s Name: [REDACTED]
Date of Birth: [REDACTED]
District: REDACTED
Hearing Requested by: [REDACTED]
Dates of Hearing: February 15, 2023
March 10, 2023
March 27, 2023
April 4, 2023
April 20, 2023
Record Close: December 5, 2023
Hearing Officer: ANNETTE HICKS GILL, Esq. Case No. “REDACTED”
NAMES AND TITLES OF PERSONS WHO APPEARED
FEBRUARY 15, 2023 *
For the Student:
[REDACTED], ESQ., Attorney
For the Department of Education:
NONE
NAMES AND TITLES OF PERSONS WHO APPEARED
MARCH 10, 2023 *
For the Student:
[REDACTED], ESQ., Attorney
For the Department of Education:
[REDACTED], ESQ., Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED
MARCH 27, 2023 *
For the Student:
[REDACTED], ESQ., Attorney
[REDACTED], Parent Student
[REDACTED], Director of Schools, [REDACTED] Unlocked
For the Department of Education:
[REDACTED], ESQ., Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED
APRIL 4, 2023 *
For the Student:
[REDACTED], Paralegal
For the Department of Education:
NONE
NAMES AND TITLES OF PERSONS WHO APPEARED
APRIL 20, 2023 *
For the Student:
[REDACTED], ESQ., Attorney
[REDACTED], Parent Student
[REDACTED], PHD, School Psychologist and Neurologist
[REDACTED], PHD, School Psychologist and Neurologist
For the Department of Education:
[REDACTED], ESQ., Attorney
* All appearances were by video conference.
This case was brought before the undersigned Impartial Hearing Officer pursuant to appointment by the New York City Department of Education (DOE) under the Individual with Disabilities Education Act (IDEA), 20 United States Code §1415(f)(1). [REDACTED] (Student) is a [REDACTED]-year-old student whose parents [REDACTED] (Parent) brought the instant action, arguing that the DOE had failed to provide their child with a free appropriate public education (FAPE) for the 2020-2021 school year.
The matter convened on February 15, 2023, and March 10, 2023, with status conferences. The substantive hearing began on March 27, 2023, and continued on March 27, 2023, and April 4, 2023 and April 20, 2023. A schedule was set for closing briefs and Parent submitted its brief. (IHO exhibit I). Extensions were granted in accordance with regulations and the record closed upon receipt of the remaining evidence.
DISTRICT AND PARENT POSITIONS
It is the Parent’s position that the DOE failed to meet its burden of establishing that it maintained adequate procedures pursuant to its Child Find obligation or carried out those procedures with regard to the Student per the allegations in the Parent’s Due Process Complaints (P exhibit A); that the Parent successfully met her burden of establishing the appropriateness the Student’s unilateral placement at [REDACTED] Unlocked (AU), and that the DOE failed to establish any equitable issues that would preclude reimbursement to the Parent for this unilateral placement. The Parent therefore seeks an order requiring the DOE to reimburse the parents for the cost of her child’s unilateral placement for the partial 2020-2021 school year upon submission of proof of payment. The Parent offered 9 documents into evidence (P exhibits A-I). Case No. “REDACTED”
The District argued that the Parent’s claim is time barred as the Parent knew or should have known that from April 1, 2019, the Department failed to properly evaluate and make a determination of the student as alleged in the claim. (Transcript p. 18). Secondly, the District maintained that based on the information it had at the time of the first meeting, the student was found properly to be ineligible for special education services during school. (Transcript p. 17). The District offered 20 (D exhibits 1-20) documents that were entered. There was no oral testimony or other evidence offered by the District.
FINDINGS OF FACT
The Student has been found to have a disability and to have demonstrated clear signs of such several school years prior to being classified by the DOE in June of 2021, including the 2019-2020 school year, and the beginning off the 2020-2021 school year as evidenced by his report cards and the Parent’s testimony (P exhibits F, G and I; D exhibits 6 and 12; Transcript pp.126-135) .
The Parent gave a detailed assessment of the student’s current condition and needs during her testimony. She states that the student was admitted to the hospital after having expressed suicidal thoughts that escalated from ideation to planning. He was receiving educational instruction at that time. (Transcript pl 136). The Student received a neuropsychological evaluation at the Parent’s request which stated that due to stress the he tended to disengage from his lessons or homework which interfered with his ability to perform. The report elucidates the Student’s strengths and weaknesses, identifies the appropriate accommodations and supports that the he requires at school and clarify whether neuropsychological or social emotional diagnoses, Case No. “REDACTED” explains his observed challenges, and offers strategies to help support him academically, socially and emotionally, both in school and at home. (P exhibit C-1).
The Parent made multiple tuition payments (Parents exhibit J) and seeks reimbursement and payment for the rest of the school year. (Parents exhibit I). Among other recommendations, it was found that due to the extent of the Student’s significant emotional dysregulation, as well as his deficits in attention, executive functioning, and writing, he requires a full-time special education environment that is specifically designed to meet the needs of students with his profile. The Student’s set of strengths and weaknesses mean he requires a small classroom setting in a school for children with emotional disorders and learning disabilities, and with teachers who are specially trained to work with these students. He needs a placement that will provide a high teacher/student ratio in a small, emotionally supportive classroom to address his academic deficits. He needs a program that employs a multi-sensory teaching approach with a structured scope and sequence that is provided with scaffolding. He needs this level of support on a daily basis and to be incorporated into his entire school day, throughout all content areas of the curriculum. He also needs structure and repetition throughout the day to address his working memory, processing, attention, and executive functioning deficits. Also, given his intellectual capacity, he needs to be in an environment where he will be sufficiently challenged. The Student can learn within a small, structured, and nurturing classroom led by teachers trained in working with students with emotional disorders and learning difficulties as described above. Without this appropriate educational setting, [REDACTED] is at high risk of falling behind his age peers, developing severe disabilities, and experiencing even greater emotional impact caused by insufficient academic progress. (P exhibit C-26 and 27). Case No. “REDACTED”
The Student was also found to need special testing accommodations among other school and classroom supports, individual remediation for Math, Writing, and Reading, behavioral and social skills intervention, clinical intervention, as well as special at home care. (P exhibit C27-31).
After the Student was released from the hospital and went back to school, the Parent was informed that the school would not be able to provide the types of supports that the Student Needed. The Parent wrote two subsequent emails on December 14, 2020, and January 15, 2021 which were never responded to by the District. (Transcript pp. 140-141; P exhibit B). The January email specifically requested an IEP and stated that the Parent would have no other option but to enroll the Student at [REDACTED] Unlocked (AU). (Parent exhibit B). The DOE acknowledged receipt of that email, but nothing further (Transcript p. 142).
The Director of School at [REDACTED], testified about the type of programs provided to the Student and stated that [REDACTED] is a school that meets his needs (Tr. 39-45), the individualized program of instruction and support that was developed for him, considering his profile and needs (Tr. 45-57), and his progress throughout the months he attended [REDACTED]during the 2020-2021 school year (Tr. 57-62).
The Parent determined that [REDACTED] would be able to meet the student’s specific needs and executed an Enrollment Agreement indicating that tuition was $51,600.00, and the Parent paid that amount. (Transcript pp. 144-145). The Parent found [REDACTED] to e very support and provided a tailored educational experience to meet the needs of her child. His outlook on school also improved. (Transcript pp. 145-146). A subsequent IEP meeting was held at the request of the Parent on June 21, 2021. At such time, Parent raised all of the concerns Case No. “REDACTED” raised at the time of her oral testimony, and well as stating her disagreement with the findings. (Ibid).
CONCLUSIONS OF LAW
The decision in this case rests on a determination of the three-pronged test set forth by the United States Supreme Court in the Burlington case, which provided that a board of education may be required to pay for educational services obtained for a child by the child’s 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. Dept. of Educ., Massachusetts, 471 U.S. 359 (1985); Florence County Sch. Dist. Four v. Carter, 510 US 7 (1993).
ISSUE 1 – STATUE OF LIMITATIONS
The generally applicable timeline to bring an administrative claim under the IDEA New York law is two years. (Somoza v. N.Y. City Dep’t of Educ., 538 F.3d 106, 114 (2nd Cir. 2008) (quoting 20 U.S.C. §1415(b)(6)(B)).) This time period was tolled in New York during the Covid pandemic by Executive Orders E.O. 202.8 (9 NYCRR 8.202.8) and following, for a period from March 20, 2020 until November 4, 2020 as per E.O. 202.72. (9 NYCRR 8.202.72.) These Executive Orders have the effect of adding 229 days to file a claim after the regular two-year period under the IDEA.
Given the filing of this matter on January 3, 2023, the hearing officer may consider claims about which the parent knew or should have known dating back to May 19, 2020. This Case No. “REDACTED” includes the DOE’s failure to identify the Student with a suspected disability while he attended school in the Spring of 2020, failure to identify the Student while he attended the School in the fall of 2020, and the DOE’s failure to identify him while he attended [REDACTED]in the winter of 2021. Furthermore, the DOE’s failure to timely evaluate Student pursuant to the Parents’ request for evaluation in January of 2021.
In this case, given the DOE did not conduct the proper and timely evaluations of the student and such, the Child Find violation remained. Therefore, this matter is not time barred. ISSUE 2 - Appropriateness of School District Program
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); see also Tarlowe v. New York City Bd. Of Educ., 2008 WL 2736027 (SDNY July 3, 2008), noting that a CSE must consider, among other things, the “results of the initial evaluation or most recent evaluation” of the student, as well as the academic, developmental, and functional needs of the student. The IEP must accurately reflect the results of evaluations to identify the student's needs, establish annual goals related to those needs, and provides for the use of appropriate special education services. 34 CFR §300.320(a)(2); 34 CFR §300.320(a)(4); 8 NYCRR §200.4(d)(2)(iii); 8 NYCRR §200.4(d)(2)(v); see Application of the Board of Education, Appeal No. 14-104; Application of the New York City Department of Education, Appeal No. 13-121.
In this case, the district representative did not state that the DOE had provided the child with a FAPE for 2020-2021. Although the District provided some documentary evidence, no witness testimony was offered establishing that a FAPE had been provided. The District also did Case No. “REDACTED” not note any issues concerning equity in this matter.
For the reasons noted, I find the district failed to provide a FAPE for the Student. ISSUE 3 – Appropriateness of Parent Placement
Analysis turns to the second prong of Burlington, under which the parents bear the burden of proving the appropriateness of the services obtained for the student. M.S. v. Board of Education of the City of Yonkers, 231 F.3d 96, 104 (2d Cir. 2000); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 94-29; Application of a Child with a Disability, Appeal No. 95-57. In order to meet that burden, the parents must show that the Kids First offered an educational program designed to meet Student’s special education needs. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985). A unilateral placement is only appropriate if it provides education instruction specifically designed to meet the unique needs of a handicapped child. Gagliardo v. Arlington Central School District, 489 F.3d 105 (2d Cir. 2007).
In this regard, I find that the parents have sustained their burden of demonstrating the appropriateness of the program at [REDACTED]. It was established through testimony and other evidence that the [REDACTED] provides the types of services and instruction that the Student is in need of and it is found that he made significant progress at this placement by the Parent. Also, the Director’s testimony substantiated by the Student’s Winter and Spring 2021 progress reports clearly demonstrate that the Student received a meaningful benefit from his time at [REDACTED] Unlocked during that school year.
For all the above, I find that the Parent has demonstrated the appropriateness of the program at [REDACTED] for the Student. Case No. “REDACTED”
ISSUE 4 – Equities
The third prong of the Burlington decision requires a balancing of the equities in determining whether reimbursement should be awarded. The Individuals with Disabilities Education Act (IDEA) provides that an award of tuition reimbursement may be reduced or denied if notwithstanding their being advised that they should do so, parents neither inform the CSE of their disagreement with its proposed placement and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the school district with written notice of such information ten business days before such removal. 20 U.S.C. §1412(a)(10)(C)(iii). In this case, the Parent did inform the Factors relevant to equitable considerations include whether the withdrawal of the student from public school was justified. The 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. Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 (1st Cir. 2004); see also Frank G., 459 F.3d 356 (2nd Cir. 2006).
In terms of equities, the DOE failed to respond to the majority of the requests made by the Parent for her child. This failure to respond to his significant struggles in school without adequate supports despite clear signs of a disability. For all these reasons, I find that there is nothing in the equities that would deny the Parents full relief.
REIMBURSEMENT.
A hearing officer is empowered to grant relief he, she or the court determines to be Case No. “REDACTED” appropriate. 34 C.F.R. §300.516(c)(3). Once such remedy is reimbursement of tuition and related expenses. Florence Cunty Sch. Dist. Four v. Carter, 510 U.S. 7, IDELR 532 (1993); Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S.359, 103 LRP 37667(1985). A local education agency (LEA”) may be required to reimburse parents for their tuition payment to a private school for the services obtained for the student by his or her parents if the services offered by the LEA were inadequate or inappropriate, the services selected by the parents were appropriate under the Act, and equitable considerations support the parents’ claim for reimbursement. Id. In Burlington, the Court found that Congress intended retroactive reimbursement to parents by a Lea as an available remedy in a proper case. Burlington, 471 U.S.at 370-71. “Reimbursement merely requires [an LEA] to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper [IEP] Id. The mere fact that the private school placement does not bar the parents from reimbursement. Florence County Schl. Dist. Four v. Carter, 510 US. 7 (1993).
The initial inquiry is whether the student’s IEP and/or placement is/are “proper or “appropriate.” School Comm. Of Burlington, 471 U.S. at 369 and 374. However, this initial inquiry may go beyond the appropriateness of the IEP and/or placement, See, e.g., Forest Grove
v. T.A., 57 U.S. 230 (2009) (child find); P.C. v. Oceanside Union Free Sch. Dist., 818 F. Supp. 2d 516 (E.E.N.Y. 2011) (eligibility) Mr. N.C. v. Bedford Cent. School. Dist., 300 F. App’s 11(2d Cir. 2008) inappropriate evaluation).
In this case, it was established that the placement was no longer able to meet the student’s needs as demonstrated by the testimony of the Director and the Parent.
Should the hearing officer determine that the school district did not offer a FAPE to the Case No. “REDACTED” student, the next inquiry is whether the parent’s unilateral placement is appropriate” or “proper”. School Comm. Of Burlington, 42 U.S. at 369 and 370; see also Carter 510 U.S. at 15.
I find that the Parent demonstrated through documentary and testimonial evidence that the unilateral placement was appropriate for the student for the 2020-2021 school year.
The final consideration is the balancing of the equites. In this step, the hearing officer must examine the action of the parents and school district, including:
1. Whether the parents failed to provide the school district with timely notice, either at the most recent IEP team meeting oar at least 10 business days prior to removal of the student from the public school of their rejection of the proposed public placement, including their concerns and intent to enroll the student in a private school at public expense. 20 U.S.C. § 1412(a)(10)(C)(iii)(I); 34 C.F.R. § 300.148(d)(1).
2. Whether prior to the student’s removal, the school district informed the parents of its intent to evaluate the student, but the parent did not make the student available for the evaluation. 20 U.S.C. §1412(a)(10)(C)(iii)(II), 34 C.F.R. § 300.148(d)(2).
3. Whether the parents’ action was unreasonable. 20 U.S.C. §1412(a)(10)(C)(iii)(III), 34 C.F.R. § 300.148(d)(3).
4. Whether the cost of the private placement is unreasonable. Florence County Sch. Dist. Four v. Carter, 510 U.S. at 16.
5. Whether there was a lack of parental cooperation with the school district.
C.G. v. Five Town Community Sch. Dist., 513 F.3d 279 (1st Cir. 2008)
In this case, the Parent gave timely notice, and the District did not attempt to evaluate the Student. If find the Parent’s action and the cost to be reasonable. Lastly, the District failed to Case No. “REDACTED” demonstrate a lack of cooperation on the Parent’s part.
ORDER
The DOE shall directly refund and prospectively fund the student’s tuition at the [REDACTED]school for the 2020-2021 school year upon adequate proof of payment.
IT IS SO ORDERED.
Dated: December 11, 2023
Annette HIckcs Gill
ANNETTE HICKS GILL
Impartial Hearing Officer
“REDACTED”
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 proceedings 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. Case No. “REDACTED”
EXHIBITS
DEPARTMENT OF EDUCATION EXHIBITS
1. Ineligible for Special Education Services Package 03/25/2019 7 pages DOE
2. Prior Notice Package for Placement 04/01/2019 3 pages DOE
3. Initial Referral Email 01/08/2019 1 page DOE
4. Psychoeducational Evaluation 03/22/2019 5 pages DOE
5. Classroom Observation 03/22/2019 1 page DOE
6. Report Card 2, 2018-2019 Term Undated 2 pages DOE
7. OT Evaluation 02/08/2019 2 pages DOE
8. OT and PT Parent Checklist Undated 2 pages DOE
9. OT Teacher Report Undated 2 pages DOE
10. Social History Evaluation 02/04/2019 3 pages DOE
11. Teacher’s Progress Report 01/28/2019 3 pages DOE
12. Progress Report Undated 7 pages 2018-2019 DOE
13. Psychological Evaluation 10/06/2017 25 pages DOE
14. Referral letter Undated 1 page DOE
15. Hospital Discharge Summary 12/04/2020 5 pages DOE
16. Social History Evaluation 02/26/2021 5 pages DOE
17. Neuropsychological and Educational Assessment Undated 43 pages DOE
18. Student Pre-Assessment Undated 12 pages DOE
19. Psychiatric Evaluation 06/03/21 5 pages Case No. “REDACTED” DOE
20. IEP 06/21/2021 25 pages DOE
PARENT EXHIBITS
A. Request for Impartial Hearing 1/3/2023 3 pages
B. Email to [REDACTED] 1/15/2021 1 page
C. Neuropsychological Evaluation 10/13 - 10/28/2020 43 pages
D. [REDACTED] Enrollment Agreement Undated 5 pages
E. [REDACTED]Class Schedule 1/18/2021 1 page
F. [REDACTED]Progress Report Winter 2020 8 pages
G. [REDACTED]Progress Report Spring 2021 8 pages
H. [REDACTED]Statement of Payments Undated 1 page
I. [REDACTED]Final Report Card 2019-2020 1 page
IHO EXHIBITS
I. Parent’s Closing Brief May 19, 2023 13 pages