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CASE NUMBER: 595246 - NYC: 245078
FINDINGS OF FACT AND DECISION
Student’s Name [1]: [REDACTED] (“Student”)
Date of Birth: [REDACTED]
School District: # [REDACTED]
Hearing Requested by: [REDACTED] (“Parent”)
Request Date/Date Complaint Filed: 01/19/2023
Date(s) of Hearing: 06/15/2023, & 06/30/2023
Actual Record Closed Date: 07/12/2023
Date of Decision: 07/20/2023
Date of Distribution if Different than Decision Date: N/A
Time Sensitive: No
Hearing Officer: Harry A. Christodoulou
NAMES AND TITLES OF PERSONS WHO APPEARED
JUNE 15, 2023
For the Student:
[REDACTED] (hereinafter referred to as “Parent’s representative”)
For the Department of Education:
[REDACTED] (hereinafter referred to as “District’s representative”)
NAMES AND TITLES OF PERSONS WHO APPEARED
JUNE 30, 2023
For the Student:
Parent’s representative
For the Parents:
For the Department of Education:
District’s representative
INTRODUCTION AND PROCEDURAL HISTORY
Student is an [REDACTED]-year-old classified as a student with a disability under the Individuals with Disabilities Education Act (“IDEA”). Student’s eligibility for special education supports and services is not in dispute. On January 19 [2], 2023, Parent, through Parent’s representative’s office, filed a due process complaint (“DPC”) against the New York City Department of Education (“DOE” or “District”) pursuant to the IDEA regarding the 2021-2022 school year (“SY”) (Ex. P-A). I was appointed on February 9, 2023 after another IHO’s appointment was rescinded, to determine the claims in the DPC in terms of New York State regulations, and to conduct an impartial hearing (“IH”) pursuant to 20 U.S.C. § 1415(f) and New York State Education Law § 4404(1), concerning Student’s special education program.
Time was sought to resolve the main case, but when that did not occur an IH was scheduled and held on June 15 and 30, 2023.
PENDENCY
Pendency was raised in the DPC (Ex. P-A-1). At the prehearing conference held on February 22, 2023, neither party requested a pendency hearing at that time, as the parties were working to resolve pendency amongst themselves (Ex. IHO-I).
At a status conference held on May 11, 2023 Parent’s representative requested that pendency be addressed. I noted at that conference that I would address pendency and the main hearing at the same time (T. P18).
The impartial hearing that was scheduled to commence on June 15, 2023, and Parent’s representative confirmed at the hearing that Parent was seeking an order on pendency. I asked if pendency had been agreed amongst the parties and Parent’s representative confirmed that pendency had not been resolved between the parties and Parent was seeking an order on pendency (T. P28).
Parent included a prior Findings of Fact and Decision in Parent’s disclosure (Ex. P-K) (“The FOFD”) and was relying on that document for purposes of pendency (T. P28).
LEGAL FRAMEWORK - PENDENCY
The IDEA and the New York State Education Law require that a student remain in the student’s then-current educational placement, unless the student’s parents and the school district otherwise agree, during the pendency of any proceedings relating to the identification, evaluation, or placement of the student. [3]
Under the IDEA, the pendency inquiry focuses on identifying the student’s then-current educational placement.[4] Although not defined by statute, the phrase “then-current placement” has been found to mean either: (1) the placement described in the student’s most recently implemented Individualized Education Program (“IEP”); (2) the operative placement actually functioning at the time when the due process proceeding was commenced; or, (3) the placement at the time of the previously implemented IEP. [5]
The Second Circuit has stated that educational placement means “the general type of educational program in which the child is placed,”[6] and that “the pendency provision does not guarantee a disabled child the right to remain in the exact same school with the exact same service providers.” [7]
However, if there is an agreement between the parties on the student’s educational placement during the due process proceedings, it need not be reduced to a new IEP, and the agreement can supersede the prior unchallenged IEP as the student’s then-current educational placement. [8]
A prior unappealed impartial hearing officer's findings of fact and decision also may establish a student's current educational placement for purposes of pendency. [9]
FINDINGS - PENDENCY
Parent’s representative asserted that Parent’s position is that the Attending School is Student’s last agreed upon placement pursuant to The FOFD (T. P33). I clarified that Parent was seeking an order on pendency to fund Student’s placement at the Attending School based on a 10-month program, from the time of filing the DPC, relying upon The FOFD (T. P34, & P35). District’s representative confirmed that the DOE agrees that pendency would be based on The FOFD (T. P28). The DOE therefore was not disputing Student’s entitlement to pendency.
I find that it is common cause between the parties that The FOFD establishes the Student’s “then-current placement” for purposes of pendency, which FOFD ordered the DOE to “prospectively fund, satisfy the debt for and/or reimburse the Parent(s) (as applicable) … for the student’s 10-month program” at the Attending School (Ex. P-K-12).
The stay-put provision only applies when the parent files an IDEA due process complaint, and it requires that students remain in the current educational placement pending the resolution of an educational dispute. Stay-put acts as an automatic injunction and does not require any party to take any action.[10] Parents of students with disabilities do not need to request stay-put protections. The stay-put provision takes effect as soon as the parents file the complaint.
Although the DPC is dated January 18, 2022 [11], it was only filed with the Impartial Hearing Office on January 18, 2023 at 5:35pm (Ex. P-A-3). Since it was filed after business hours, it is only reflected as “request on 01/19/2023” in the Impartial Hearing System. That therefore is the date when Student’s entitlement to stay put would have arisen.
This means that the District must maintain the student's current educational placement regardless of whether the Parent's DPC specifically mentions the student's stay-put rights,[12] or the basis upon which pendency is being asserted, from January 19, 2023 pursuant to its stay-put obligations.
Upon reading all the transcripts for purposes of preparing this FOFD, I note that Parent’s representative 2 (defined below) stated at a status conference held on April 24, 2023 for purposes of extending the compliance date that pendency was in place and that Student was placed and receiving educational benefit (T. P12). Given this representation, an order on pendency is not warranted. [13]
Since there was no disagreement as to what program constitutes the Student’s placement for the pendency of this matter, and therefore no requirement to hold a pendency hearing, there would be no reason to issue an order on pendency especially in these circumstances. Pendency attaches by virtue of the statute for the duration of the administrative proceedings. If the District refuses to fund services under pendency from January 19, 2023 through the date of this decision (or if appealed, the date of such appeal decision), Parent may file a new DPC notice containing such allegations relating to that period of time (if pendency was in fact not in place, contrary to what had been indicated to me on April 24, 2023). [14]
CASES PRESENTED – MAIN CASE
District’s representative confirmed at the IH that the DOE was not conceding Prong I, in other words it was not being conceded that the DOE did not provide Student a FAPE for the SY at issue (T. P26). The DOE however did not present documentary evidence or call any witnesses (T. P26). District’s representative waived the DOE’s opening statement (T. P26). District’s representative confirmed that the DOE rested its case (T. P30), and later in the proceedings confirmed that the DOE was waiving a closing statement (T. P44). Parent’s representatives made an opening statement (T. P32-P33) and submitted eleven documents in support of Parent’s case. There were no formal objections to any of the documents being admitted at the main hearing (T. P28, P31, P43, & P44).
Additionally, there were affidavits included as part of Parent’s disclosure (Ex. P-E, P-I, & P-J). District’s representative had no cross-examination for any of the affiants and therefore Parent’s Witness (defined below), Affiant (defined below), and Parent were excused from testifying (T. P27, & P43). All admitted exhibits are listed below (see Appendix B). Parent’s representative confirmed that Parent rested Parent’s case and made a closing statement, addressing Parent’s case presented and the final relief sought (T. P44-P48). When I sought clarity regarding the request for transportation in the DPC at an earlier status conference and whether that was still being pursued, Parent’s representative confirmed her understanding that Parent was only looking for the tuitionrelated services funding (T. P19, & P20).
ISSUES FOR DETERMINATION
The issues for determination include: whether the DOE provided a FAPE to the Student for the SY at issue (i.e., Prong I); whether the school selected by Parent was an appropriate placement (i.e., Prong II); and whether any equitable factors are applicable that would warrant an adjustment or denial of the final amount awarded (i.e., Prong III), assuming Prong II is determined in favor of Parent; and appropriate remedies.
JURISDICTION
A decision in this matter is being rendered pursuant to the IDEA15 and its implementing regulations,[16] and the New York State Education Law[17] and its implementing regulations. [18]
LEGAL FRAMEWORK
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 Committee on Special Education (“CSE”) through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits [19].
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 [20].
The IDEA directs that, in general, an IH officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE [21]. A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" [22].
15 20 U.S.C. § 1400 et seq.
To show a denial of a FAPE based on a failure to implement an IEP, a party must establish more than a de minimus failure to implement all elements of the IEP, and instead must demonstrate that the school board or other authorities failed to implement substantial or significant provisions of the IEP [23]. Courts have held that it must be ascertained whether the aspects of the IEP that were not followed were substantial, or in other words, "material" [24].
The DOE may be required to pay for educational services obtained for a student by the student’s parent, if the services offered by the DOE were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent’s claim. [25]
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 direct funding for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement – which is applicable in this case. [26]
FINDINGS OF FACT AND DECISION
[I] Claim for Tuition Funding/Reimbursement: Denial of a FAPE (Prong I):
The Supreme Court has found that “[a] reviewing court may fairly expect those authorities [school district staff] to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” [27]
Although the DOE elected not to concede that it failed to provide Student with a FAPE for the SY at issue, it did not set out to meet its Prong I burden. There is no IEP, no prior written notice, no school location letter, and no testimony by any witnesses seeking to establish that it: conducted an annual review for Student for the relevant SY; produced an annual IEP by the first day of the relevant SY; provided the Parent with prior written notice of any changes to the Student's IEP; sent a school location letter with a placement for Student for the relevant SY; and that the school in question had a seat available and could have implemented the Student’s IEP [28].
Parent asserts in her affidavit that the Proposed School (defined below) had been found by a previous IH Officer to be an inappropriate placement for Student for a prior SY and that she tried to contact the Proposed School to see if anything had changed, but did not receive a response (Ex. P-I-1). Additionally, Parent’s Witness testified in her affidavit that she was familiar with the Special Class 12:1+1 model offered in Student’s 2021-2022 IEP and that based upon Student’s needs and presentation in the Attending School’s 3:1+1 class, Parent’s Witness was of the belief that Student required a smaller and more intensive program than a 12:1+1 setting could offer; and that Student needed significant 1:1 instruction and support to address Student’s constellation of needs, and that that level of support could not be provided in a class of twelve (Ex. P-J-5). Despite there being no Prong I concession, given that the District bears the onus, even if it were 50-50, the record supports a finding that the District failed to meet its burden in these proceedings.
Given the lack of such evidence on record regarding Prong I, the DOE has not discharged its burden in these proceedings to establish that it provided Student a FAPE for the 2021-2022 SY. Parent has accordingly met the first criterion of the three-part test set out in the Burlington/Carter case for tuition reimbursement/funding. Appropriateness of the Parent’s Unilateral Placement (Prong II):
Parents have the burden of proving that the unilateral placement was appropriate. To meet this burden, parents must establish, by a preponderance of the evidence, that the unilateral placement provides “educational instruction specifically designed to meet the unique needs of the student.” [29]
The private school placement however “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements.” [30]
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.” [31]
The Judges in the Gagliardo case wrote that:
“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”[32] (my emphases).
In both instances highlighted above, the focus is on the needs of the child, which are individual and unique, and that the placement must reasonably serve those needs to an extent that permits the child to benefit from the instruction. Parental placements are not subject to the same mainstreaming requirements as a school district placement. The private placement need not provide certified special education teachers or an IEP.
Parent’s Witness testified by affidavit (Ex. P-J), inter alia, as to:
Witness’ title, namely principal of the elementary branch of the Attending School, holding the position since its inception twenty years prior; Witness’ educational background, holding a Masters’ degree in Special Education and being certified in New York State in both special and general education; Witness’ duties and responsibilities; and how the Attending School offers self-contained special education classrooms hosted within mainstream school sites, providing general information regarding the school including the tailoring of programs for each student, class sizes, grouping of students, professional development, and related services offered.
Witness’ familiarity with Student, Student having attended the school for a number of years, observing
Student in the classroom, collaborating with Student’s teachers and speaking with Student’s teachers and providers on a daily basis; and how Student had significant academic and attentional delays which necessitated Student’s need for a very small and intensive special education setting.
How Student had struggles in all areas of learning and was delayed in reading, writing, and math; how Student was impulsive and struggled with authority; how much of Student’s academic struggles stemmed from Student’s difficulties with emotional regulation; how Student was easily frustrated, especially when Student’s felt work was too hard, shutting down and becoming unavailable for learning; how Student had significant struggles with focusing and was easily distractible; and how Student needed significant prompting, repetition, and encouragement in the classroom due to these issues.
How Student was provided a very small and intensive special education program to address Student’s needs, where Student was provided with 1:1 support and small group instruction; how with this support Student made significant progress over the 2021-2022 SY; how Student’s classroom was a 3:1+1 ratio and all of the students in Student’s class were within a 2-year age range; and how the student-to-teacher ratio in this class was kept low, as the students had significant needs necessitating significant 1:1 instruction and support.
How Student was taught by Student’s Teachers (defined below), one of which has a master’s degree in Special Education and NYS Certification in Special Education, as well as one full time assistant; what the ELA (reading & comprehension), Writing, Math programs focused on, the level where Student was at the beginning of the SY, Student’s struggles, how the school addressed Student’s needs, how Student was measured, and the levels where Student was at by the end of the SY, demonstrating progress.
How Student would cry, scream, and shut down if Student felt that a situation was not going Student’s way; how Student struggled with the role of authority if it interfered with what Student’s wanted; how Student found it difficult to comply with multi-step directions; how Student struggled to speak respectfully to adults; how Student was easily frustrated and difficult to redirect when Student would shut down; how, to address Student’s social/emotional needs, the school created a behavioral modification plan in which Student could earn points each day if Student met individual behavior goals; and how by the end of the 2021-2022 SY, Student had made great progress with Student’s social skills, having less frequent outbursts, being less frustrated overall, and being able to stay more attentive to tasks.
How during the relevant SY Student received speech therapy (2x30), occupational therapy (2x30), and counseling (1x30); how Student made progress in all areas, elaborating on what was worked on in each area and the improvements made by the end of the SY; and how all of Student’s teachers and therapists met as a team once every two weeks and Witness met with the teachers one every two weeks, which was important to ensure that all of Student’s providers and teachers were targeting the same needs and working together.
How much of Student’s progress could be attributed to the staff at the Attending School, the environment it provided, and the intensive support Student received; how the material and curriculum were adapted to Student’s unique needs; how the small class size and individualized approach allowed Student to grow academically and socially; and how overall the Attending School program appropriately addressed Student’s needs.
Parent also testified by affidavit (Ex. P-I) asserting, inter alia, that: Student made significant progress; she saw Student’s reading and math skills improve; importantly, she saw Student’s ability to regulate Student’s emotions and deal with frustration improve; Student became more willing to ask for help and appropriately express how Student was feeling; and that this helped Student better get along with peers.
I find that the Student’s program at the Attending School was specifically designed to cater to a class or category of students, namely those with special needs who struggle to function in a general education setting, requiring a small class size with a low student-to-teacher ratio in self-contained special education classrooms, individualized programming and curriculum, as well as social/emotional development supports (Ex. P-H). The entire program, including the supports and services provided for the 2021-2022 SY, were designed to meet the needs of this class or category of student. Based on the evidence on record, I find that Student falls in this class or category.
The detailed evidence presented by Parent’s Witness substantiating how Student’s teachers specifically tailored the program for Student’s unique and individual needs (i.e., individually tailoring the program to address Student’s unique special education needs (Ex. P-J-1)), including providing 1:1 support to address Student’s deficits and reach Student’s academic and social/emotional goals, is uncontested and credible. The evidence on record, which was not disputed through any testimony contradicting the testimony of Parent’s Witness, supports Parent’s and Parent’s Witness’ assertion that the Attending School was an appropriate placement for Student for the 2021-2022 SY.
The testimony of Parent, Parent’s Witness, and Parent’s documentary evidence (Ex. P-G, through P-J) establishes that the Attending School was appropriate and provided Student with educational instruction that was specifically designed to meet Student’s unique special education needs, supported by such services that were necessary to permit Student to benefit from instruction, for the 2021-2022 SY. I find that, based on the Student’s attendance at the Attending School for the SY in question, as testified to by Parent’s Witness and Parent, Student made progress for the 2021-2022 SY.
Parent has therefore met the second criterion of the three-part test set out in the Burlington/Carter case for tuition funding/reimbursement.
Equitable Factors (Prong III):
Equitable considerations are relevant to fashioning relief under the IDEA. [33]
The IDEA also provides that reimbursement/funding may be reduced or denied when parents fail to challenge the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. [34]
The IDEA allows that reimbursement/funding 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 student 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.” [35]
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.”[36] Although a reduction in reimbursement/funding is discretionary, courts have upheld the denial of reimbursement/funding in cases where it was shown that parents failed to comply with this statutory provision [37].
The record reflects that Parent notified the CSE by email correspondence dated August 26, 2021 and October 4, 2021 [38], of Parent’s intention to enroll Student at the Attending School (and then continue Student’s enrollment) and seek public funding for the 2021-2022 SY (Ex. P-B, & P-C).
I find that in this correspondence, Parent offered sufficient information to put the DOE on notice of Parent’s concerns regarding the CSE’s recommendation and other concerns, as well as informing of Parent’s intention to enroll Student at the Attending School for the 2021-2022 SY, giving the DOE an opportunity to cure any deficiencies, which is the intent underlying the ten-day notice requirement. [39]
Parent confirmed in her affidavit that she signed the contract enrolling Student at the Attending School for the 2021-2022 SY (Ex. P-I-2), which was signed days before providing the CSE the ten-day notice (Ex. P-D), namely on August 24, 2021 (Ex. P-D).
The Second Circuit has explained that, so long as parents cooperate with the CSE, “their pursuit of a private placement [i]s not a basis for denying their [request for] tuition reimbursement, even assuming . . . that the parents never intended to keep [the student] in public school.”[40] I therefore find that Parent having signed the school contract before sending the Parent’s first ten-day notice to be of no consequence to Parent’s claim.
The amounts for Student’s enrollment at the Attending School for the tuition and related service are set out in the contract and its addendum, namely of $52,000.00 and $9,000.00 respectively (Ex. P-D-2). The total contract cost was also confirmed by Affiant (Ex. P-E-1), who also verified that no monies had been received from Parents as of May 18, 2023, which was affirmed by Parent in her affidavit (Ex. P-I-2).
Parent’s obligation to pay is evidenced in the enrollment contract and the addendum thereto (Ex. P-D) and was confirmed by Parent in her testimony (Ex. P-I-2).
Parent disclosed a 2020 U.S. Tax Form 1040 (Ex. P-F) and confirmed in her affidavit that it was a complete and accurate representation of her family’s annual income (Ex. P-I-2). Given the contents of this document, and Parent’s affidavit testimony, I find that a case for direct funding based upon need has been made out. Parent’s ability to pay was not placed in issue by the DOE.
I do not find any factors applicable to warrant a reduction of the claim for tuition funding based upon equitable factors. There is no evidence on record of Parent refusing or failing to co-operate with the DOE or engage in any conduct that prevented the DOE from fulfilling its obligation to the Student. Parent asserted in Parent’s affidavit that if the CSE had offered her an appropriate program for Student, she would have considered it (Ex. P-I-2). No specific equitable factors were raised by the DOE.
Parent’s Witness confirmed that the religious instruction component for the school week comprises fourteen percent (Ex. P-J-5). Parent’s representative confirmed that Parent was not seeking an award for that portion of the tuition and therefore an appropriate adjustment to the final award has been made (T. P34).
Parent has therefore met the third criterion of the three-part test set out in the Burlington/Carter case for tuition funding. Having met all three criteria, Parent is entitled to an award for such funding for the cost of Student’s placement at the Attending School for the 2021-2022 SY, minus the deduction for religious instruction.
Other than the relief set out in my Order below, I do not find any other basis or evidence in the record supporting any additional relief.
ORDER:
Based upon the above, it is hereby ORDERED that, the DOE shall fund Student’s placement at the Attending School for the 2021-2022 school year in the sum of $53, 720.00 (Fifty-Three Thousand, Seven Hundred and Twenty Dollars) [41], by making direct payment to the Attending School, less any payments made by the DOE for the 2021-2022 SY pursuant to or under Stay-Put or Pendency (as applicable).
SO ORDERED.
DATED: July 20, 2023
__H.A.C._ (Signed Electronically) ___
Impartial Hearing Officer
Harry A. Christodoulou
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 [REDACTED]
APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD
PARENT’S EXHIBITS
A. DPC 01/18/2023 3 pages
B. Parent letter 08/26/2021 2 pages
C. Parent letter 10/04/2021 2 pages
D. Contract 09/03/2021 2 pages
E. Payment affidavit 05/18/2023 1 page
F. Federal 1040 form 2020 3 pages
G. Schedule 2021 - 2022 2 pages
H. Program Description Undated 2 pages
PARENT
I. testimony affidavit 06/08/2023 2 pages
J. School testimony affidavit 06/08/2023 6 pages
K. FOFD 08/22/2022 15 pages
DOE’S EXHIBITS
- - - -
IHO’S EXHIBITS
I. IHO’s Prehearing Conference Summary Email 02/22/2023 1 page
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] The DPC was filed with the Impartial Hearing Office on January 18, 2023 at 5:35PM (Ex. P-A-3), which was outside of business hours and is therefore reflected as “requested on 01/19/2023” in the Impartial hearing System, being the next business day.
[3] 20 U.S.C. § 1415[j]; Educ. Law §§ 4404[4], 4410[7][c]; 34 CFR 300.518[a]; 8 NYCRR 200.5[m]; see, Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *20 [E.D.N.Y. Oct. 30, 2008]; Bd. of Educ. v. O'Shea, 353 F. Supp. 2d 449, 455-56 [S.D.N.Y. Jan. 18, 2005]; Application of a Student with a Disability, Appeal No. 14-024; Application of the Dep't of Educ., Appeal No. 08- 061).
[4] Mackey v. Bd. of Educ., 386 F.3d 158, 163 [2d Cir. 2004], citing Zvi D., 694 F.2d at 906.
[5] Dervishi v. Stamford Bd. of Educ., 653 Fed. App'x 55, 57-58 [2d Cir. June 27, 2016], quoting Mackey, 386 F.3d at 163; T.M., 752 F.3d at 170-71 [holding that the pendency provision "requires a school district to continue funding whatever educational placement was last agreed upon for the child"]; see Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 452 [2d Cir. 2015] [holding that a student's entitlement to stay-put arises when a due process complaint notice is filed]; Susquenita Sch. Dist. v. Raelee, 96 F.3d 78, 83 [3d Cir. 1996]; Letter to Baugh, 211 IDELR 481 [OSEP 1987].
[6] Concerned Parents, 629 F.2d at 753, 756.
[7] T.M., 752 F.3d at 171.
[8] Bd. of Educ. v. Schutz, 290 F.3d 476, 483-84 [2d Cir. 2002]; Evans, 921 F. Supp. at 1189 n.3; Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 86 F. Supp. 2d 354, 366 [S.D.N.Y. 2000], aff'd, 297 F.3d 195 [2d Cir. 2002]; see also Letter to Hampden, 49 IDELR 197 [OSEP 2007].
[9] See Abrams v. Carranza, 2019 U.S. Dist. LEXIS 95403 at *8 (S.D.N.Y. June 6, 2019); Student X v. New York City Dep't of Educ., 2008 WL 4890440 (E.D.N.Y. 2008), citing Letter to Hampden, 49 IDELR 197 (OSEP 2007). See also 34 C.F.R. § 300.518(d) and 8 NYCRR § 200.5(m)(2).
[10] 34 CFR 300.518 [a].
[11] Parent’s representative indicated that it could most likely be a typo in the DPC (T. P35).
[12] Carl B. v. Mundelein High Sch. Dist. 120 Bd. of Educ., 20 IDELR 263 (N.D. Ill. 1993).
[13] As a separate point, I note that the period in question (i.e., commencing from January 19, 2023 onwards) falls outside of the SY that is before me in the DPC.
[14] See Application of a Student with a Disability, Appeal No. 22-162, pg. 16.
[16] 34 C.F.R. § 300 et seq.
[17] Educ. Law Art. 89 § 4404 et seq.
[18] 8 NYCRR § Part 200.
[19] Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005].
[20] 20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007].
[21] 20 U.S.C. § 1415[f][3][E][i].
[22] Rowley, 458 U.S. at 203.
[23] Houston Indep. Sch. Dist., 200 F.3d at 349; Fisher v. Stafford Township Bd. of Educ., 289 Fed. App'x 520, 524-25, 2008 WL 3523992 [3d Cir. Aug. 14, 2008]; Couture v. Bd. of Educ., 535 F.3d 1243 [10th Cir. 2008]; Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022, 1027 n.3 [8th Cir. 2003]
[24] A.P., 370 Fed. App'x at 205; Van Duyn, 502 F.3d at 822; Catalan v. Dist. of Columbia, 478 F. Supp. 2d 73 [D.D.C. 2007].
[25] School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; See also Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 [2d Cir. 2006], cert denied, and Bd. of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 WL 2982269 [Oct. 15, 2007].
[26] NYS Educ. Law § 4404(1)(c). The burden was confirmed by the parents’ representatives at the status conference held on May 11, 2023 (T. P20).
[27] Endrew F. v. Douglas County School District, 137 S. Ct. at 1002 (2017).
[28] In L.B., ex rel. E.B., v. New York City Dep’t of Educ. the U.S. District Judge wrote: “Substantive violations of IDEA may include the failure to propose an IEP or deficiencies in the IEP itself. Id.; Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 238-39, 129 S. Ct. 2484, 174 L. Ed. 2d 168 (2009). School districts are required to have a written IEP in effect for each child with a disability by the beginning of the school year, 20 U.S.C. § 1414(d)(2)(A), and, in New York State, the school year begins annually on the first day of July. See N.Y. Educ. Law § 2(15). Thus, failure to provide a written IEP by July 1 constitutes a substantive denial of FAPE. C.W.L. and E.L. v. Pelham Union Free Sch. Dist., 149 F. Supp. 3d 451, 465” (122 LRP 8348) [S.D.N.Y. 2015] (citations included). This case addressed a statute of limitations issue, where the parent had relied upon the following failures by the DOE (the “Failures”): to hold an annual review for the student for the relevant school year; to provide the parent with prior written notice of a change, or lack thereof, to the student's IEP; to send a school location letter with a placement for the student for the relevant school year; and to produce an annual IEP by the first day of the relevant school year. It was conceded by the DOE that the Failures had constituted the denial of a FAPE and the DOE did not contest that it had denied the student a FAPE. The IHO Decision, which was the decision being appealed, did not probe whether the denial of a FAPE was procedural, substantive, or both, but found that "the DOE's failure to present a case at the hearing is a concession that it denied the student FAPE ....". The U.S. District Judge wrote, about the Failures, that in “any case, there were clearly both procedural and substantive violations of IDEA that amounted to the denial of a FAPE”. Id.
[29] Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 [2d. Cir. 2007].
[30] Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d. Cr. 2006].
[31] Gagliardo, 489 F.3d at 115.
[32] Gagliardo, 489 F.3d at 112 (quoting Frank G., 459 F.3d at 364-65).
[33] Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826 [2d Cir., 2014]; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see 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. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"].
[34] 20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; see S.W. v. New York City Dep't of Educ., 646 F. Supp. 2d 346, 362-64 [S.D.N.Y. 2009]; 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, 192 Fed. App'x 62, 2006 WL 2335140 [2d Cir. Aug. 9, 2006]; Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-61 [S.D.N.Y. 2005]; see also Voluntown, 226 F.3d at 69 n.9; Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001].
[35] 20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1].
[36] Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004].
[37] 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]); see Frank G. v. Bd. of Educ., 459 F.3d 356, 376 [2d Cir. 2006]; Voluntown, 226 F.3d at 68; Lauren V. v. Colonial Sch. Dist., 2007 WL 3085854, at * 13 [E.D. Pa. Oct. 22, 2007].
[38] Sent on August 27, 2021 and October 7, 2021, respectively. Whilst not strictly a ten-day notice as Student attended school from September 1, 2021 (Ex. P-E-1), given that there is no evidence on record that the DOE addressed these concerns for the SY at issue, necessitating Parent’s second ten-day notice (Ex. P-E), I do not make a Prong III deduction based on the timing of Parent’s initial ten-day notice.
[39] Greenland Sch. Dist., 358 F.3d at 160.
[40] C.L., 744 F.3d at 840.
[41] $44,720.00 ($52,000.00 x 0.86) + $9,000.00.