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Findings of Fact and Decision Case No. 245218
FINDINGS OF FACT & DECISION
City/State: 245218
Student’s Name: REDACTED (Hereinafter referred to as “Student”)
Date of Birth: REDACTED
District: REDACTED
Hearing Request by: PARENT (Hereinafter referred to as “Parent”)
School: REDACTED (Hereinafter referred to “School or Academy”)
Actual Record Close: December 7, 2023
Hearing Officer: ANN MARQUEZ, ESQ.
Date of Decision: December 11, 2023
NAMES AND TITLES OF PERSONS WHO APPEARED
For the Student:
REDACTED, ESQ., Parent Representative
REDACTED, Parent Student
REDACTED, School Supervisor, REDACTED
For the Department of Education:
REDACTED, ESQ., District Representative
x
REDACTED, a minor, by and through the Parents
Petitioner
DECISION AND ORDER
-against- Case No. 245218
NEW YORK CITY DEPARTMENT OF EDUCATION
Respondent. x
This matter comes before the undersigned Impartial Hearing Officer (“IHO”) through the Parent’s Due Process Complaint (“DPC”) filed on May 9, 2022. (Ex. A)1. The DPC alleged that the DOE failed provide the Student with a Free Appropriate Public Education (“FAPE”) as required by the Individuals with Disabilities Education Act (“IDEA”) by not providing the Student with services for the 2022-2023 school year (school year at issue). The Parent is seeking an order for direct funding/tuition reimbursement for the Student’s tuition at the Academy for the school year at issue. (Ex. A).
On February 3, 2023, the undersigned Hearing Officer was appointed to the above referenced matter. Hearings went forward in this case on multiple dates (See, Tr.). [2]
The Parent representative presented opening statements, witnesses, documentary evidence, and a closing brief. The District presented opening statements, documentary evidence, and a closing brief.
Lists of the documentary evidence submitted are appended to this Order.
BACKGROUND
The Student is classified as a student with Other Health Impairment, then with Learning Disability. (Ex. B, 1, C). The Student’s classification and eligibility for special education support and services are not in dispute.
The Parents maintain that the DOE failed to offer the Student an appropriate program and placement for the 2022-2023 school year, and thus failed to offer her a free appropriate public education (“FAPE”). The Parents seek an order for direct funding/tuition
1 Exhibits shall be referred to as follows: “Alphabet Letters” for Parent Exhibit; “Numbers” for the District’s Exhibits; and “Roman Numerals” for the Impartial Hearing Officer’s exhibits.
reimbursement for the Student’s tuition at the Academy for the school year at issue. Id.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The IDEA is comprehensive statutory framework established by Congress to ensure that students with disabilities are afforded free appropriate public education (“FAPE”). See, 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 US 49 (2005). A “free appropriate public education consists of educational instruction that is designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction.” Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 188 (1982).
In order to demonstrate that FAPE is being provided, the school district must show “that it complied with the procedural requirements set forth in the IDEA, and that the Individualized Education Plan (“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.” See, Application of Child with a Disability, Appeal No. 05-061, quoting, Rowley at 206. The student’s recommended program must also be provided in the least restrictive environment with non-disabled peers. See, Walczak v. Florida Union Free Sch. Dt., 142 F.3rd 119 (2nd Cir. 1998). Two purposes of the 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 Parent of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally, Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Rowley, at 206-07).
Under the FAPE analysis, the public school and/or Local Education Agency (“LEA”) has the burden of persuasion and the burden of production to demonstrate that the disabled child was provided a FAPE as set forth in the IDEA.
Here, the District did not present any testimony to support its contention that it offered the Student a FAPE for the school year at issue. The District rests its case solely on the submission of documentary evidence.
Documentary evidence, unsupported by any testimony, is not sufficient to establish that a school district offered a student a FAPE. There was absolutely no explanation, let alone a cogent and responsive explanation, for the CSE’s program and placement recommendations.
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.” Endrew F. v. Douglas County School District, 137 S. Ct. at 1002 (2017).
Based upon the foregoing, the District failed to demonstrate that the school district offered the Student a FAPE for the 2022-2023 school year. Therefore, the Student was denied a FAPE for the 2022-2023 school year, which is the first prong of the three Burlington/Carter criteria for public funding tuition related to unilateral placement.
THE UNILATERAL PLACEMENT OF THE CHILD IN THE PRIVATE SCHOOL WAS
APPROPRIATE -TUITION REIMBURSEMENT
The IDEA specifically contemplates that "when a public school, Local Education Agency (“LEA”) fails to provide a FAPE and a child's Parent place the child in an appropriate private school without the school district's consent, a court may require the district to reimburse the Parent for the cost of the private education." Forest Grove, 129 S. Ct. at 2488; see 20 U.S.C. § 1412(a)(10)(C).
When a state receiving federal funding for special education fails to give a disabled child a FAPE under the IDEA, the child's Parent or guardians may unilaterally place the child in an appropriate private school and seek tuition reimbursement from the state. See Florence County Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7, 12 (1993) ("Carter"); Sch. Comm. of Burlington, Mass. v. Dept. of Educ., 471 U.S. 359, 369-70 (1985) ("Burlington").
Under the Burlington-Carter test for tuition reimbursement, plaintiffs are entitled to reimbursement of private school tuition if (1) the IEP was not "reasonably calculated to enable the child to receive educational benefits," (2) "the private schooling obtained by the Parent is appropriate to the child's needs," and (3) equitable considerations support the plaintiffs' claim. T.Y., 584 F.3d at 417 (citation omitted);see also Forest Grove, 129 S. Ct. at 2496 ("Parent are entitled to reimbursement only if a federal court concludes both that the public placement violated IDEA and the private school placement was proper under the Act. And even then, courts retain discretion to reduce the amount of a reimbursement award if the equities so warrant. . .." (citation omitted)).
Under New York law, the burden of persuasion falls upon the Parent to show that their unilateral placement at a private school was appropriate.[3] The Second Circuit cautioned that under a unilateral private placement a parent need only demonstrate that the placement provides educational instruction specifically 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. [4]
The standards for determining whether a private school placement is "appropriate" under the IDEA closely resemble, but does not mirror, the standards for assessing the adequacy and appropriateness provided by the State education for proposed public placement.[5] "[T]he test for the Parent ' private placement is that it is appropriate, and not that it is perfect." Gagliardo, 489 F.3d at 115 (citation omitted). Ultimately, the standard to be applied is to determine whether "[the] unilateral private placement ... provides education instruction specifically designed to meet the unique needs of a handicapped child." Id. [10]
Here, the record demonstrates by the submission of exhibits and the testimony of witnesses that the Academy is an appropriate placement for the Student’s 2022-2023 school year. (See generally, Tr. November 1, 2023; Ex. B, C, D, F, G, H, I). The Student is classified by the DOE as a student with Other Health Impairment, then with Learning Disability. (See generally, Ex. B, 1, C).
For the school year at issue, the Student was unilaterally placed in the Academy, which is a private, special education school that offers self-contained special education classrooms to promote a comprehensive and nurturing educational environment. The Academy provides small studentteacher ratios to permit differentiated instruction for the Student’s individual learning needs in core academic curriculum, social and life skills, enrichment activities, and vocational training. Every student in the Academy program has an individually tailored program that addresses their unique special education needs. (See generally, November 1, 2023, 67-69, 84-85; Ex. C, D, F, G, H, I).
The record demonstrates the Academy provided the Student with tailored instruction and aligned with the New York State Common Core Curriculum that was modified to accommodate the unique needs of the student. (Tr. November 1, 2023, 67-69; Ex. D, F, G, H, I ). Further, the Academy incorporates ABA methodology and collects data for each student to ensure that individual students are progressing in their academic individual goals, as well as social skills training. (Tr. November 1, 2023, 68-69, 83-87; Ex. D, F, G, H, I).
REDACTED, Supervisor at the Academy provided testimony related to the Student’s specific needs and challenges, and the Academy developed a tailored program to support the Student to enable him to make meaningful progress. (See generally, Tr. November 1, 2023, 67-69, 81-85). The Student presented with maladaptive behaviors, sensory seeking behaviors, attention deficits, and challenges across all settings due to his various skill deficits. (Tr. November 1, 2023, 84-85). The Student demonstrated progress academically in that he was performing at a 1st to 2nd grade level and progressed a fully grade level in every area. Ms. REDACTED testified that the Student progressed a full grade level of progress in the decoding, in the literacy, in the reading, as well as the computation and problem-solving. (Tr. 84-85; Ex. H).
For the school year at issue, at the Academy, the Student was in the 5th grade and placed in a small class, up to 7 students, with two teachers present at all times, including a special education teacher who was licensed in the State of New York. (Tr. 72-74, 82-84). The Student was grouped with classmates based upon similar needs and functional levels, all had special needs. Id.
Additionally, the Academy provided the Student with his related services, Speech Language Therapy, Occupational Therapy, Counseling Services, and a BCBA, by certified and licensed providers. (Tr. 85, 82-84). Additionally, the Academy conducted a functional behavior assessment of the Student to further identify the source of his challenges, and created a behavioral intervention plan along with a treatment plan for his challenges (Tr. Id.; Ex. H).
The Academy incorporates ABA methodology, and data is collected on each student, and used that to ensure that individual students were progressing towards their goals, and modifications were made when necessary. (Tr. 68-69, 72-74, 82-84).
The record further demonstrates that the Academy developed an educational instruction that is specifically designed to meet the Student’s unique special education needs, and the Student was supported by such services that are necessary to permit him to benefit from instruction. (See generally, Tr. November 1, 2023; Ex. B, C, D, F, G, H, I).
The DOE did not present any evidence to challenge the Parents’ contention that the Academy placement is an appropriate program and placement for the Student. The record amply establishes that the placement was appropriate and provided the Student with educational instruction that was specifically designed to meet the Student’s unique special education needs and he was supported by such services that are necessary to permit him to benefit from educational instruction.
Overall, the record demonstrates that at the Academy the Student was provided with an individually tailored program appropriate placement, and the Student made meaningful progress for the school year at issue. The Student was provided with both small group instruction and one-on-one support, a small class size, related services, opportunities for social-emotional growth, and made progress for the school year at issue. (See generally, Tr. November 1, 2023; Ex. B, C, D, F, G, H, I).
Based upon the foregoing, by the preponderance of the evidence, the Parent has met its burden of proving that the unilateral placement and services are appropriate, and the placement and services provide educational instruction specifically designed to meet the unique needs of this Student.
BALANCING THE EQUITIES
The determination of whether or not equitable factors support a parent’s claim for tuition reimbursement hinges, in large part, on whether or not the parent cooperated with the CSE. Equitable considerations are relevant in fashioning relief, and the court enjoys broad discretion in so doing. Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required." [6]
Carter, 510 U.S. at 16 (citation omitted).
The record is devoid of evidence establishing that the cost of the private education was unreasonable. The District has not “identified . . . particular services provided by [the School] that the district considered unnecessary to the provision of a FAPE (and for which reimbursement was therefore not required)or. . . otherwise shown that only a portion of [the student’s] tuition cost should be reimbursed” (M.H., 685 F.3d at 254-55 n.12).
The DOE raised issues that could limit tuition reimbursement. (Ex. IHO I). Here, the record demonstrates Parents cooperated with the CSE and provided the DOE with appropriate written notice. (Ex. J, K, 9, 11). The Parent’s address remained the same from the prior school year to the school year at issue, which is 75-25 153rd Street, Apt. 231, Flushing, NY 11367. (Ex. A, B, J, K). The Parent sent two TDNs in this matter, on September 19, 2022, and January 12, 2022. (Ex. J, K). Notably, the IESP dated April 6, 2022, was conducted by the REDACTED Public School for the school year at issue. (Ex. B, 9).
However, the DOE did not even conduct an IEP for the Student until approximately 3 months later, on December 6, 2022, after receiving notice from the Parent through the first TDN, dated September 19, 2022. (Ex. J, C). Thereafter, the Parent sent the DOE another TDN dated January 12, 2023. Based upon the foregoing, the timeframe between the first TDN September 8, 2022, the Student’s IEP dated December 6, 2022, and the second TDN January 12, 2023, is approximately 4 months. It is unclear why the DOE would take approximately 3 months to conduct an IEP for the Student. Based upon the foregoing equitable considerations, the Student’s tuition at the Academy must be adjusted, approximately 2 months from the 10-month school year for direct funding/tuition reimbursement.
The record further demonstrates that the Parents are financially unable to pay the full tuition at the Academy for the school year at issue. (See generally, Tr. November 1, 2023, 110-112; Ex. D, E). The Student’s tuition at the Academy with related services for the school year at issue is $120,000.00. (Ex. D, E). The Parents paid $3600.00 towards such tuition for the school year at issue. (Ex. E). The Parents now seek an order for direct funding/tuition reimbursement for the Student’s tuition at the Academy for the school year at issue. (Tr. 110-112; Ex. D, E). There are no equitable factors that disfavor funding the parents’ unilateral placement.
Moreover, the record demonstrates that the Student received a de minimis amount of religious instruction at the Academy during the school week. The non-secular/religious instruction is $5000.00 (Tr. 86; Ex. D, E, IHO II), and 8-months of secular instruction is $92,000.00 ($11,500.00 per month), minus the Parent’s payment of $3600.00 towards such tuition leaving a balance of $88,400.00 for the Student’s tuition for the school year at issue. Id.
Direct payment under such circumstances may be ordered. Based upon the foregoing, the equities lean in favor of the Parent to support the Parents’ claim for direct funding and tuition reimbursement for the Student’s tuition at the Academy for the school year at issue. There are no equitable factors that disfavor funding the parents’ unilateral placement.
Therefore, the Parents have met the third of the three Burlington/Carter criteria for direct public funding and tuition reimbursement for the Student’s tuition for the school year at issue. Having met all three of the Burlington/Carter criteria, the Parents are entitled to tuition direct
Based upon the foregoing findings of fact and conclusions of law herein, IT IS HEREBY ORDERED the following:
• The DOE failed to meet its burden of proof to demonstrate that the Student was provided a FAPE for the 2022-2023 school year. Thus, the Student was deprived a FAPE for the 2022-2023 school year; • The Parent has met its burden and demonstrated that the unilateral placement of the Student in the Academy for the 2022-2023 school year was appropriate and provides an education instruction that is specifically designed to meet this Student’s unique needs; • The equities favor the Parent in part, in that the Student’s tuition at the Academy is adjusted from a 10-month to an 8-month school year, for the 2022-2023 school year ; • Upon the DOE’s receipt of the Academy’s invoice, supporting documents, and the Student’s attendance records for the 2022-2023 school year, the DOE is to directly fund the Student’s secular tuition at the Academy and related services for the sum of $88,400.00, minus any payments made by the DOE (Ex. D, E); and • Upon the DOE’s receipt of the Academy’s invoice, supporting documents, and the Student’s attendance records for the 2022-2023 school year, the DOE is to reimburse the Parent’s for the Student’s tuition at the Academy for the sum of $3600.00, minus any payments made by the DOE (Ex. E).
DATED: December 11, 2023
Impartial Hearing Officer-Ann Marquez
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.
District’s Exhibits:
1 Individualized 12/06/2022 28 pp.
Educational
Program (IEP) 2 Prior Notice 12/09/2022 6
Package for Placement 3 Teacher Progress 11/20/2022 5
Report 4 Speech Language 11/15/2022 10
Evaluation 5 Occupational 10/13/2022 1
Therapy Progress
Report 6 Treatment Plan 9/15/2022 6 7 Behavior 9/08/2022 4
Intervention Plan 8 Functional Behavior 9/01/2022 7
Assessment 9 Parent Email 10/25/2021 1 10 Individualized 12/03/2020 13
Educational Services
Plan (IESP) 11 SESIS Events Log 12/09/2020 - 7
4/27/2023
Parent’s Exhibits: A Request for Due Process Proceeding and Notice of Appearance 01/23/2023 7 B IESP 04/06/2022 11 C IEP 12/06/2022 27 D Student Contract, Program Description, and Curriculum 08/16/2022 18 E Affirmations regarding Tuition Breakdown and Payments 05/04/2023 2 F Curriculum Schedule 2022-2023 1 G Student Attendance 2022-2023 1 H Assessments, Plans, and Reports Various 31 I Psychoeducational Evaluation 08/24/2023-08/29/2023 7 J Request for IEP and Placement/Ten Day Notice 09/19/2022 2 K Ten Day Notice from Parent to DOE 01/12/2023 2
IHO’s Exhibits I District’s Closing Brief 11/30/2023 17 II Parent’s Closing Brief 11/30/2023 9
Footnotes
[2] Reference to the Transcript shall be referred to as “Tr.”
[3] See Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 58 (2005)
[4] Gagliardo, 489 F.3d at 115; C.B. v. Garden Grove Unified School Dist., 635 F. 3d 1155, 1159(9th Cir.).
[5] 34 C.F.R. 300.14 8©; See also Carter, 510 U.S. at 14.
[6] Bch. Comm. of Burlington v. Dept. of Educ., 471 U.S. 359-556; Forest Grove Sch. Dist. V. T.A. 557 U.S. 230; and A.C., 553 F.3d at 171 funding and tuition reimbursement for the Student’s 2022-2023 school year placement at the Academy.