Impartial Hearing Decision

Findings of Fact and Decision Case No. 245266

FINDINGS OF FACT & DECISION

City/State: 245266

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 8, 2023

NAMES AND TITLES OF PERSONS WHO APPEARED

For the Student:

[REDACTED], ESQ., Parent Representative

[REDACTED], Parent Student

[REDACTED], Founder and Head of School, The [REDACTED]

For the Department of Education:

[REDACTED], ESQ., District Representative

[REDACTED], District Representative

[REDACTED], District Representative

x

[REDACTED], a minor, by and through the Parents

DECISION AND ORDER

Petitioner

-against- Case No. 245266

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 January 24, 2023. (Ex. A) ^[1]. The DPC alleged that 0F 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 during the for the 2022-2023 school year (school year at issue). The Parent is seeking an order for tuition reimbursement for the Student’s tuition at the Academy for the 2022-2023 school year. Id.

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] 1F

The Parent representative presented opening statements, witnesses, and documentary evidence, and a closing brief. The District representative did not.

Lists of the documentary evidence submitted are appended to this Order.

BACKGROUND

The Student is classified with Autism. (Ex. A, E). 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 him a free appropriate public education (“FAPE”). The Parents enrolled the Student at the Academy for the 2022-2023 school year. For the school year at issue, the Parents now seek an order for direct funding/tuition reimbursement for the Student’s tuition at the Academy. 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 representative did not present any evidence to demonstrate the Student was provided with a FAPE for the school year at issue.

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

2F 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] 3F

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 4F 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 amply 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. D, E). The Student is classified with Autism. (Ex. A, F). For the school year at issue, the Student was 11 years old, diagnosed with interstitial deletion of chromosome 6, Autism Spectrum Disorder (ASD) with language and intellectual impairment, verbal apraxia, developmental coordination disorder (Ex. E). The Student is highly non-verbal, his vocabulary is limited to a few words. Id.

The record demonstrates that the Academy provides instruction for students with global developmental delays, autism spectrum disorder, speech and language delays, and neurodevelopmental disabilities. (See generally, Tr. November 1, 2023; Ex. E). For the 2022-2023 school year, at the Academy the Student was placed in a small classroom with six other students, and provided with one-to-one support throughout the day. (Tr. 79). The Student engages in behaviors such as noncompliance, property destruction and flopping. He presents as self-directed and engages in behavior that requires consistent support to access the curriculum in both 1:1 and group activities. (Ex. E-40).

At the Academy, the Student made progress towards his behavior goals. Through the use of Antecedent-Behavior-Consequence (ABC) data collection and direct observation, the following area of growth has been identified: increase in complying with the directions and decreasing the frequency of pushing and property destruction behaviors. The Academy implemented the Student’s Behavior Intervention Plan (BIP), and demonstrated progress on his goal of decreasing the frequency and duration of noncompliance. (Ex. E-43). He met his goal to follow instructions provided by staff, comply with classroom routines, transition to the following activity, and complete non-preferred tasks with 2 or less instances of noncompliance for several days. Additionally, he continued to work towards his objective to utilize self-regulation strategies while refraining from engaging in property destruction for several consecutive days. He also continued to work towards his objective of independently asking for a break, a minute, or space using his voice or AAC device with 2 or less instances of pushing for several consecutive days. Effective antecedent and consequence strategies and interventions will continue to be utilized to facilitate progress towards behavioral goals. Id.

Academically, the Student continues to make progress on his math goals. With prompting and support, he continues to work on attending to the class materials and participating in differentiated classwork. (Ex. E-45). The Student made significant progress utilizing scaffolded learning targets, slow paced learning and presenting new information using multiple modalities. He requires visual schedules and a predictable routine each day of class in order for him to participate and engage with the curriculum. (Ex. E-47). Further, the Academy provided the Student with an AAC device, a high-tech dynamic display system utilizing the TouchChat application on the iPad to communicate with his teachers and peers. (Ex. E-40). He utilizes a visual field of approximately 108 icons with an array size of 9x12, containing numerous categorical folders. Due to his ability to answer questions and participate in structured and unstructured tasks verbally, his AAC device is used to clarify verbal communication that is unintelligible and when targeting specific ‘core words’ within his classroom or related service sessions. Id. At the Academy, all teachers are certified in Special Education within the State of New York, and related service therapists are licensed.

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 and the Student made meaningful progress for the school year at issue. The Student was placed in a small class with students that had similar challenges, curriculum was tailored to his needs, including substantial behavioral support, and explicit, sequential, direct, and multisensory instruction. Further, 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

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. The DOE did not raise any issues that would limit or preclude tuition reimbursement. In fact, it did not oppose tuition reimbursement on equitable grounds. Moreover, the testimony and documentary evidence make clear that the Parents cooperated with the CSE and provided the DOE with appropriate and timely written notice. (See generally, Tr. November 1, 2023; Ex. F, G).

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).

5F

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).

Further, the record demonstrates that the Parents fully cooperated with the DOE. (See generally, Tr. November 1, 2023; Ex. F, G). The Parents were under a contractual obligation to pay the tuition at the Academy. (See Tr. November 9, 2022, 68-70; Ex B, C). The Student’s tuition at the Academy for the school year at issue is $144,500.00 (Ex. B, C), and the Parent paid such tuition in full. (See Tr. November 9, 2022, 68-70; Ex B, C). The Parents now seek an order for tuition

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; and • The equities favor the Parent. 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 for the Student’s tuition at the Academy for the sum of $144,500.00, minus any payments made by the DOE (Ex. B, C).

DATED: December 8, 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: No Exhibits

Parent’s Exhibits:

A Due Process Complaint January 24, 2023 5 B 2022-2023 Tuition Statement September 20, 2023 2 C 2022-2023 Contract April 25, 2022 18 D 2022-2023 Attendance 2022-2023 School Year 1 E 2022-2023 Progress Reports November 18, 2022 59 F Notice of Unilateral Placement August 22, 2022 2 G DOE Response to Exhibit F September 9, 2022 1

IHO’s Exhibits:

I. Parent’s Closing Brief 11/30/2023 9

Footnotes

[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.

[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 reimbursement for the Student’s tuition 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 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 reimbursement for the Student’s 2022- 2023 school year at the Academy.