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CASE NUMBER: 594462 - NYC: 244550
FINDINGS OF FACT AND DECISION
Case Number: 24450
Student’s Name [1]: [REDACTED] (“Student”)
Date of Birth: [REDACTED]
School District: [REDACTED]
Hearing Requested by: [REDACTED] (“Parent”)
Request Date/Date Complaint Filed: January 5, 2023
Dates of Hearing: April 5, 2023, May 8, 2023 and May 15, 2023
Actual Record Closed Date: May 27, 2023
Date of Decision: June 7, 2023
Date of Distribution if Different than Decision Date:
Hearing Officer: Lisa S. Rusk, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
APRIL 5, 2023
For the Student:
[REDACTED] Advocate
For the Department of Education:
[REDACTED] Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED
MAY 8, 2023
For the Student:
[REDACTED] Advocate
For the Department of Education:
[REDACTED] Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED
MAY 15, 2023
For the Student:
[REDACTED] Advocate
[REDACTED] Parent
[REDACTED] Assistant Head of Middle School
For the Department of Education:
[REDACTED] Attorney
INTRODUCTION AND PROCEDURAL HISTORY
This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parents’ Due Process Complaint (“DPC"), dated January 4, 2023 and filed on January 5, 2023. (Ex. P-
A) 2. The record does not contain any evidence of a substantive response to the DPC by [REDACTED] (hereinafter referred to as “the District”). This IHO was appointed on February 1, 2023. A pre-hearing conference was held on February 7, 2023. [REDACTED] appeared on behalf of the Parent. [REDACTED] appeared on behalf of the District. [REDACTED] indicated that the matter was under investigation for possible settlement (T:4). [REDACTED] indicated she did not believe the Parent would be pursuing her claim under Section 504 of the Rehabilitation Act of 1973 (T:5) [3]. The Parent clarified that they were not seeking additional evaluations of the Student or payment for transportation expenses (T:6,7). The parties agreed to hold a status conference on March 2, 2023 while the District completed its investigation (T:8-9). At the status conference on March [2], 2023, [REDACTED] appeared on behalf of the Parent and [REDACTED] appeared on behalf of the District. [REDACTED] indicated that the District’s investigation had not been completed. The hearing was scheduled to commence on April 5, 2023 (T:14-15, 18-19).
The hearing commenced on April 5, 2023. [REDACTED] appeared for the District and the District entered into evidence Exhibits 1-7.[4] The advocate handling the case was unavailable, and [REDACTED] appeared on behalf of the Parent. Parent Exhibits A-N were identified only. The District made an opening statement on the record, and indicated it would be presenting two witnesses. The Parent asked to postpone their opening statement and advised they would have three witnesses (T:34-36).
The hearing continued on May 8, 2023 for the testimony of the District’s witnesses. The District did not present any witnesses and rested its case (T:44). The District further clarified that it would not be making any arguments to prove that it provided the Student with a free appropriate public education (“FAPE”) for the school year and conceded that it did not offer the Student a FAPE (T:44-45). Parent Exhibits A-N were entered into evidence.
The final date of hearing was May 15, 2023. The Parent presented two witnesses, the Parent and [REDACTED], the Assistant Head of Middle School (hereinafter referred to as “the Assistant Head”) at [REDACTED] (hereinafter referred to as “the private school”). The District had no cross-examination for the Parent’s witnesses (T:70,83).
Three extensions of the compliance date were granted at the request of the parties. Counsel for both parties made closing statements on the record. The District stated: “The [District] did not present any witnesses to defend against a free, appropriate public education for the school year at issue. As it pertains to the appropriateness of the unilateral placement, we defer to the IHO to review the transcript and testimony provided, and issue an appropriate decision, and we are not making any equitable arguments.” (T:86). The record was closed on May 27, 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. As stated above, the Parent did not pursue any claims under Section 504.
ISSUES
The Parents raise in the DPC numerous procedural and substantive challenges to the appropriateness of the District’s recommendations including:
• The District failed to provide a FAPE for the 2021-22 school year.
• The IEP team may not have been duly constituted.
• The District failed to evaluate the Student in all areas of disability.
• The IEP’s present levels of achievement are not accurate.
• The IEP’s goals are not specific and measurable or sufficiently challenging.
• The program, placement and related services are not appropriate.
• The 12:1:1 ratio in a [REDACTED] program is too restrictive.
• The District cannot implement the IEP as recommended.
The DPC seeks reimbursement and/or direct funding of the Parent’s unilateral placement at the private school for the 2021-22 school year.
FINDINGS OF FACT
The Parent testified that the Student first started receiving services during Early Intervention. She received services from the Committee on Preschool Special Education and was classified by the CSE when she turned 5. She attended a District 12:1:1 special class placement from kindergarten through 5th grade (T:75-76). The Student first attended the private school during 6th grade (T:83). The Parent testified that she had concerns with the CSE’s recommendation for the 21-22 school year (T:78-79). She signed a contract with the private school in June of 2021. The stated tuition was $90,525, and she was unable financially to pay any of the tuition (T:80, Exs. P-M, P-N).
The Assistant Head testified that the private school is a co-educational school of approximately 240 students with intellectual and developmental disabilities for kindergarteners through age 21. The head teachers and related service providers are licensed (T:61-62). The Student was in seventh grade during the 2021-22 school year. A full description of the program is in evidence as Exhibit P-B. The Assistant Head was familiar with the Student in that she interacts daily with all middle school students, observes students in classes and attends and facilitates staff meetings (T:63). She described the Student as working independently on a 2nd grade level and instructionally on a 2nd to 3rd grade level. Her social emotional skills are a relative strength, and she does not act out behaviorally. During 2021-22, she received occupational therapy (“OT”), speech therapy and counseling in small groups and individually(T:63-64).
The Student’s weekly schedules which include academics, special education and related services are in evidence as Exhibits P-F and P-G. She had six students in her math class with a head teacher, two paraprofessionals and specialists pushing in at times. There were 12 students in her language arts class and a head teacher, assistant teacher, two paraprofessionals and specialists pushing in at times (T:66). The Assistant Head testified that the Student benefitted from the small group and one-on-one instruction. She needs support in advocating for herself and actively participating in class. She benefitted from extra time to complete assignments, graphic organizers and other forms of scaffolding to complete tasks (T:67).
The Assistant Head testified that the Student progressed during the 2021-22 school year in areas such as identifying and expressing her emotions, working independently, advocating for herself in the classroom setting, socializing with friends, following routines independently, organizing her schedule, staying on task and moving from class to class independently. She made a good friend in her cohort and would eat lunch with friends (T:68). The Assistant Head believed the private school was an appropriate program for the Student because it was a small, individualized, multisensory program with integrated academics and related services (T:69). Her progress reports are in evidence as Exhibits P-H, P-I and P-J. They describe the specific interventions utilized and progress made in more detail, in areas such as reading fluency and comprehension, spelling, writing paragraphs with graphic organizers, mathematical operations and financial transactions (Ex. P-J-4,6,13). Her speech language therapist described her work and progress in receptive, expressive and pragmatic language (Ex. P-J-18). She also made progress in her counseling and occupational therapy sessions (Ex. P-J-19-22).
The Parent testified that she agreed the Student made progress at the private school during the 2021-22 school year. Her confidence was boosted, and she was reading and writing more. Socially, she flourished and looked forward to going to school every day (T:82).
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).
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 parent in order to meet his or her 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 parents in order to qualify for an award of tuition reimbursement.
ANALYSIS
The District did not present a case to prove that it met its obligation to provide the Student with a FAPE. Based upon the District’s failure to present any defense of its recommendations for the 2021-22 school year and/or a description as to how it would meet the Student’s special education needs, I find that the District has failed to meet its burden under Prong I of the Burlington/Carter test. Given the District’s recognized failure to meet its burden, I do not find it necessary to consider all of the specific challenges to the IEP raised in the DPC.
Turning to the private school program selected by the Parent, the Parent argues that the selected program appropriately addressed the Student’s needs and that she has met her burden under Prong II of the Burlington/Carter test. The District raised no objections or challenges to the private school program. According to the testimony of the Parent, she was unable to pay the tuition herself.
Based upon a thorough review of the testimony and evidence, I find the Parent met her burden that the private school provided the Student with specific individualized instruction and services to meet her unique special education needs during the 2021-22 school year. The uncontroverted testimony and evidence as set forth above reflects that the private school provided her with individualized instruction to address her special education, social/emotional and related services needs and that she made incremental progress commensurate with her disability.
With regard to the equities, there is no evidence in the record that the Parent thwarted the process in any meaningful way that would have otherwise prevented the CSE from making a defensible recommendation for the 2021-22 school year. The Parent gave the District timely notice of her dissatisfaction with the District’s actions and their intention to unilaterally place the Student at the private school and seek reimbursement (Ex. P-E). As such, the equitable considerations weigh in favor of the Parent, and the Parent is entitled to an award of direct funding of the tuition for the twelve-month 2021-22 school year.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
1. ORDERED that the District shall directly pay to the private school within thirty (30) days of the date of this decision the tuition owed to the private school for the 2021-22 school year.
2. ORDERED that the District shall consult with the Parent and conduct a reevaluation of the Student in all areas of suspected disability if such has not already been completed.
SO ORDERED.
DATED: June 7, 2023
Lisa S. Rusk
Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the parent and/or the Public-School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.
An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.
APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD
PARENT EXHIBITS
A. Impartial Hearing Request 01/04/23 5 pages
B. Program Description 7 pages
C. Prior Written Notice 06/16/21 4 pages
D. School Location Letter 06/16/21 2 pages
E. Ten Day Notice 06/17/21 2 pages
F. Class Schedule 21/22 2 pages
G. Summer Schedule 21/22 1 page
H. Academic Content Skills 21/22 5 pages
I. Progress Report Semester one 02/04/22 24 pages
J. Progress Report Semester two 06/17/22 27 pages
K. Attendance Record 21/22 1 page
L. Summer Attendance Record 21/22 1 page
M. Enrollment Contract 06/04/21 3 pages
N. Tuition Affidavit 08/06/21 1 page
DISTRICT EXHIBITS
# DOCUMENT DESCRIPTION DATE PAGE
1. Individualized Education Program (IEP) 04/26/2021 35 pages DOE
2. Prior Written Notice 06/18/2021 4 pages DOE
3. School Location Letter 06/18/2021 3 pages DOE
4. Social History Update 12/19/2018 2 pages DOE
5. Psychoeducational Report 3/23/2019 6 pages DOE
6. Vineland-3 Comprehensive Parent Report February 12/19/2018 8 pages DOE
7. [REDACTED] Progress Report 2021 18 pages DOE
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] Ultimately, no distinct claims were raised for jurisdiction under Section 504.
[4] A more detailed list of the admitted exhibits is attached as Appendix B, “Documentation Entered Into the Record,” to this decision.