Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 245353

Student's Name: REDACTED

Date of Birth: REDACTED

District: REDACTED

CSE: REDACTED

Hearing Requested By: Parent

Dates of Hearing: 3/21/23

11/1/23

Actual Record Close Date: 11/29/23

Hearing Officer: Tina Millman, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED 3/21/23

For the Parents:

REDACTED Parent Attorney

For the Department of Education:

REDACTED DOE Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED 11/1/23

For the Parents:

REDACTED Parent Attorney

For the Department of Education:

REDACTED DOE Attorney

INTRODUCTION

On February 6, 2023, New York City Department of Education (DOE) appointed me to act as the impartial hearing officer (IHO) in a case brought under the Federal Individuals with Disabilities Education Act (IDEA) [20 USC §1415(f)(3)] (“IDEA”) by the parents (Parents’) of REDACTED ( REDACTED or “the student”) for the 2022/23 school year. The Parents requested the hearing by filing an impartial hearing request with DOE on August 20, 2023. The DPC is carried under New York City (“NYC”) Case No: 245353 The impartial hearings were held on 3/21/23 and 11/1/23, to complete the record. The timelines have also been extended to allow the parties opportunity to fully prepare, secure witnesses and obtain transcripts. The record officially closed on November 29, 2023.

A list of persons who appeared at the hearing and the documents entered into evidence is annexed hereto.

The DOE CASE

The DOE offers no evidence nor are witnesses called to support that a FAPE was offered to the student for the 2022-2023 school year. The DOE concedes, Prong I, Prong II and Prong III and rests without producing any evidence nor witnesses to support. The DOE waives making both an opening and closing statement.

THE PARENTS CASE

The Parent offers 19 documents into evidence (A-S). The Parent utilizes affidavits of their two witnesses REDACTED and the Parent REDACTED in lieu of Direct Examination. (Exhibits R and S) The Parent’s assert that the DOE failed to provide a FAPE for the 2022- 2023 school year, The REDACTED School was appropriate to meet the students’ special education needs and the equities favor the Parent. They maintain that in light of the DOE failing to support they provided a FAPE, coupled with the appropriateness of the parents unilateral placement and the equities favoring the Parent that the DOE should be obligated to provide reimbursement for the students tuition and fees at The REDACTED School for the entire 2022-2023 school year in an amount not to exceed $67,925.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Two purposes of the IDEA (20 U.S.C. sect. 1400-1482) are (1) to ensure that with disabilities have available to them a free appropriate public education (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 parents of such students are protected. (20 U.S.C. sect. 1400 (d) (1) (A)-(B); see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 (2009); Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 (1982).

A FAPE is offered to a student when (a) the Board of Education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits ( Rowley, 458 U.S. at 206-207; Cerra v. Pawling Cent. Sch. Dist., 427 F. 3d 186, 192 (2d Cir 2005) ). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally in adequate under the IDEA. ( A.C. v. Bd. of Educ., 553 F. 3d 165, 172 (2d Cir. 2009); Grim v. Rhinebeck Cent. Sch. Dist., 346 F 3d 377, 381 ( 2d Cir. 2003); Perricelli v. Carmel Cent. Sch. Dist. 2007 WL 465211, at 10 (S.D.N.Y. Feb 9, 2007) ).

Under the IDEA, if a procedural violation is alleged, and administrative officer may find that the student to not receive a FAPE only if the procedural inadequacies (a) impeded the students’ rights 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 U.S.C. sect. 1415 (f)(3)(E)(ii); 34 CFR 300.513 (a) (2); 8 NYCRR 200.5 (j)(4)(ii); Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-526 (2007); A.H. v. Dep't.. of Educ., 2010 WL 3930028, at *2 (2d. Cir. Aug. 16, 2010; E.H. v. Bd. of Educ., 2008 WL 3930028 at *7 (N.D.N.Y. Aug. 21, 2008); Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 (S.D.N.Y. 2007) aff'd, 2008 WL 3852180 (2d Cir. Aug. 19, 2008)).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. sect 1415 (f)(3)(E)(i) ). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak v. Florida Union Free Sch. Dist., 142 F. 3d 119, 130 (2d Cir. 1998); see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education" not one that provides everything that might be thought desirable by loving parents " (Walczak, 142 F. 3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F. 2d 563, 567 ( 2d Cir. 1989) (citations omitted); see Grim, 346 F. 3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189,199; Grim, 346 F. 3d at 379; Walczak, 142 F. 3d at 132). Nonetheless, the school district must provide "an IEP that is "likely to produce progress, not regression, and..... Affords the student with an opportunity greater than mere "trivial advancement" (Cerra, 427 F. 3d at 195, quoting Walczak, 142 F. 3d at 130 ( citations omitted); see

P. v. Newington Bd. of Educ., 546 F 3d 111, 118-19 ( 2d Cir. 2008); Perricelli, 2007 WL 465211 at *15). The IEP must be " reasonably calculated to provide some meaningful benefit " (Mrs. B v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see Rowley, 458 U.S. at 192).

The students recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. sect 1412(a)(5)(A); 34 CFR 300.114 (a)(2)(i), 300.116 (a)(2);8 NYCRR 200.1 (cc), 200.6 (a) (1); see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F. 3d 105,108 (2d Cir. 2007); Walczak, 142 F 3d at 132; E.G. v. city Sch. diet. of New Rochelle, 606 F. Supp. 2d 384,388 (S.D.N.Y. 2009); Patskin v. Bd. of Educ., 583 F. Supp. 2d 422,428 (W.D.N.Y.

2008) ). An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the students’ needs (34 CFR 300.320 (a)(1); 8 NYCRR 200.4 (d)(2)(i); Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3,2008), establishes annual goals related to those needs (34 CFR300.320 (a)(2); 8 NYCRR 200.4 (d)(2)(iii)), and provides for the use of appropriate special education services (34 CFR 300.320 (a)(4); 8 NYCRR 200.4(d)(2)(v); see Application of the Dep't. of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't. of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for unilateral placement has the burden of proof regarding the appropriateness of such placement (educe. Law sect 4404 (l)(c); see M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256 at *7 (S.D.N.Y. Aug. 27, 2010) ).

Under the second criteria of the legal standard, the Parent bears the burden of showing that the private school placement selected is appropriate. (Application of a Child with a Disability, No 95-57, Application of a Child with a Disability, No. 94- 29,Application of a Child with a Disability, No. 93-34) The Parents must show that the private school placement offers an educational program that meets the student’s special education needs. (Burlington, 471 U.S. at 370, Application of a Child with a Disability, no. 94-20) The private school need not be approved by the state educational agency to provide instruction to children with disabilities. Florence County School District Four et. Al. v. Carter, 510 U.S. 7 (1993)). It is also not required that the private school employ certified special education teachers, or have its own IEP for the student. (Application of a Child with a Disability, No. 94-20)

Finally, the third criterion of the Burlington standard requires a balancing of the equities in determining whether reimbursement should be awarded.

I begin by noting that I credit the testimony of all the witnesses who appeared at the hearing. The Decision as stated below is based on the testimony and evidence presented at the hearing, which is detailed above with appropriate citations to the record. Did the DOE offer the student a FAPE/Prong I?

The first step is to determine whether the DOE offered to provide the student a FAPE. (Mrs. C. v. Voluntown, 226 F. 3d 60,66 (2nd Cir.

2000) (1982)). The DOE offers no evidence nor are witnesses called to support that a FAPE was offered to the student for the 2022-2023 school year. The DOE concedes Prong I and rests without producing any evidence nor witnesses to support and waives making an opening and closing statement. The DOE chose not to cross examine the Parents witnesses. (Tr. 43)

Herein, the DOE opted not to submit documentary evidence, witness testimony and merely rested. The SRO has found that allegations that are left unchallenged are deemed as true “unless found to be inconsistent with the evidence in the record.” Application of a Student with a Disability, 01-

044 (SRO March 27, 2002). The DOE’s silence at hearing has the effect of conceding every point alleged by the parent against the DOE unless it is inconsistent with the hearing record. Based upon the aforementioned I find the DOE denied the student a FAPE for the 2022-2023 school year.

Prong II

Having found that a FAPE has not been offered I will look to the appropriateness of the Parent’s unilateral placement. The DOE concedes Prong II and chose not to cross examine any of the Parents witness regarding the appropriateness of the Parents unilateral placement. ( Tr. 43)

After reviewing all evidence and witness testimony I find the Parents have satisfied their burden of supporting the appropriateness of The REDACTED School.

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.

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; see, Frank G., 459 F.3d at 364-65.

With respect to the relief of tuition reimbursement, the regulations and case law are quite clear, the parent’s shoulder the burden of proving that the unilateral placement for the Student is appropriate. The case law that has developed is equally clear that this appropriateness of the unilateral placement is not as rigid as the Rowley standards for the District, the parent’s however must still prove that the unilateral placement is sufficiently unique to address the unique needs of the Student. Taking this one step further, the unilateral placement must not be a “one size fits all”approach but tailored to address the unique needs of the student and that this tailored instruction must show some benefit for the Student. Parents need not show that the placement provides every special service necessary to maximize the student's potential. (Frank G., 459 F.3d at 364-65). When determining whether the parents' unilateral placement is appropriate, “[u]ltimately, the issue turns on ‘whether that placement is "reasonably calculated to enable the child to receiveeducational benefits." (Frank G., 459 F.3d at 364; Gagliardo, 489 F.3d at 115). The Parents have more than sufficiently supported their burden of the appropriateness of REDACTED.

The affidavits of REDACTED and the Parent REDACTED (Exhibits R and S) coupled with Progress Reports (Exhibit O) supports the appropriateness of the Parents unilateral placement.

Based upon the evidence submitted, coupled with the DOE’s conceding the appropriateness of REDACTED, I find that REDACTED was an appropriate placement for the student for the 2022-2023 school year.

Prong III

DO THE EQUITIES FAVOR THE PARENTS?

The third prong of the Burlington test requires the parent to demonstrate that the equities favor their claim for reimbursement.

To prevail on a claim for tuition reimbursement, “equitable considerations [must] support the parents’ claims.” M.C., 226 F.3d at 68; Burlington, 471 U.S. at 370, 374; Carter, 510 U.S. at 16. Such equitable considerations include “the reasonableness of the parties’ positions.” Burlington, 736 F.2d at 801-802. Indeed, the IDEA states that tuition reimbursement may be “reduced or denied . . . upon a judicial finding of unreasonableness with respect to actions taken by the parents.” 20 U.S.C. § 1412(a)(10)(c)(iii)(III).

The DOE raised no equitable challenges during the hearings and stating they concede the Equities favor the Parents. (Tr. 43). After review of the evidence submitted and testimony I do not find the Parent acted in a manner that would prohibit or reduce the relief requested.

There has been no suggestion in this case that the parent contributed to the FAPE deprivation at issue in any way.

The record also leaves no question as to the costs incurred in relation to the students’ attendance at REDACTED, and the Parent’s obligation to pay to do so if unsuccessful in this hearing

In light of the fact that the evidence and testimony support that the Parent fully cooperated with the CSE and did nothing to impede their offering a FAPE and notified the DOE of their intent to unilaterally place the student, based on the aforementioned, I find the equities favor the Parent.

For the aforementioned reasons, the DOE will reimburse the Parents for the students tuition and fees at the REDACTED School for the entire 2022-2023 school year.

ORDER

For reasons indicated herein, it is ORDERED

A) that the Department of Education failed to Provide REDACTED with a FAPE for the 2022-2023 school year.

B) The REDACTED School was an appropriate placement for the student for the 2022-2023 school year.

C) There are no equitable considerations that would bar the Parent from the requested relief.

D) Upon Proof of the students’ attendance and proof of payment, the DOE is to reimburse the Parents of REDACTED for monies paid for the students tuition, placement and fees at the REDACTED School for the 2022-2023 in a total amount not to exceed $ 67,925.00.

November 29, 2023

Tina Millman Esq.

Impartial Hearing Officer

PLEASE TAKE NOTICE

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 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 parties' petition 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

EVIDENCE ENTERED INTO THE RECORD

DOE EXHIBITS

None

PARENTS EXHIBITS

A. Ex Description Date Pg Due Process Complaint August 20, 2023 7 pages

B. Progress to Goals Undated 23 pages

C. Dr. REDACTED Reports October 2021, July 2022 26 pages

D. Notice of Unilateral Placement – Ten Day Notice August 22, 2022 7 pages

E. DOE Response to Exhibit D August 26, 2022 2 pages

F. Email sharing REDACTED report October 26, 2021 1 page

G. Email sharing REDACTED update and requesting IEP August 19, 2022 1 page

H. Email sharing REDACTED reports and requesting IEP September 9 + 14, 2022 1 page

I. Individualized Education Program (“IEP”) March 29, 2023 28 pages

J. Contract 2022-2023 School Year 4 pages

K. Program Description 2022-2023 School Year 2 pages

L. Schedule 2022-2023 School Year 1 page

M. Tuition Statement April 21, 2023 1 page

N. Attendance Records 2022-2023 School Year 6 pages

O. Progress Reports 2022-2023 School Year 22 pages

P. E-Mail from School re: anxiety October 4, 2021 1 page

Q. E-Mails to School re: academic struggles, regression, and anxiety May 4, 2021 February 26, 2021 3 pages

R. Affidavit of REDACTED October 30, 2023 12 pages

S. Affidavit of REDACTED October 28, 2023 3 pages