Impartial Hearing Decision

Findings of Fact and Decision Case No. 245893

FINDINGS OF FACT & DECISION

City/State: 245893

Student’s Name: [REDACTED] (Hereinafter referred to as “Student”)

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Request by: Parent

School: [REDACTED] , (Hereinafter referred to “Academy”)

Actual Record Close: December 12, 2023

Hearing Officer: ANN MARQUEZ, ESQ.

Date of Decision: December 12, 2023

NAMES AND TITLES OF PERSONS WHO APPEARED

For the Student:

[REDACTED], ESQ., Parent Representative

[REDACTED], Parent Student

[REDACTED], Program Director, [REDACTED]

[REDACTED], Educational Coordinator, [REDACTED] Program

For the Department of Education:

[REDACTED], ESQ., District Representative

x

[REDACTED] a minor, by and through the Parent

DECISION AND ORDER

Petitioner

-against- Case No. 245893

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 February 13, 2023 (Ex. A) ^[1]. The DPC alleged 0F 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 during the for the 2021-2022 school year. The Parent is seeking an order for tuition direct funding/reimbursement for the 2021-2022 school year (Ex. A).

On February 15, 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, 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 as a student with Learning Disabled. (Ex. A). Her eligibility for Special education support and services are not in dispute. The Student’s IEP dated April 22, 2021, recommended for the school year at issue, a 12:1:1 special class program in a community school district for ELA, math, science, and social studies, with related services for speech language therapy. (Ex. A). The Parents unilaterally placed the Student at the Academy for the 2021-2022 school year. The Parents maintain that the Student was not provided with a FAPE for the school year at issue, and now seek an order for direct funding and tuition reimbursement at the Academy (Ex. A,C). Additionally, a pendency order was issued on May 2, 2023, based upon the unappealed FOFD dated March 6, 2023. (Ex. IHO II).

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 evidence to demonstrate the Student was offered a FAPE for the school year at issue. 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 2021-2022 school year. Therefore, the Student was denied a FAPE for the 2021-2022 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 demonstrates that the Student’s placement at the Academy for the school year at issue was appropriate. (See generally, Tr. October 11, 2023, November 9, 2023; Ex. B, F, I). The Student is classified with a Learning Disability. (Ex. A, B, C). Further, the Student requires speech language therapy to improve receptive and expressive language skills, as well as reading and writing deficits. (Tr. October 11, 2023, 47, November 9, 2023, 87, 95-96; Ex. B, I).

At the Academy, the Student’s teachers have the relevant special education training and education, or were supervised by a person with the requisite training. (Tr. October 11, 2023, 49). Further, the Academy assessed the Student’s strengths and challenges, then developed curricula, supports, and goals specifically to address the Student’s unique needs. (Tr. November 9, 2023, 83, 85, 89, 92, 94; Ex. I). Modifications were put in place to address her overarching special education issues, such as providing the Student with extra time to organize her thoughts when necessary. (Tr. 84, 85, 91, 95-96).

At the Academy, the Student was placed in a class of 8 students with one teacher and one teacher assistant. (Tr. November 9, 2023, 84). For reading and writing, the Student’s class was further divided into smaller groups based upon her needs. (Tr. 84-85, 87, 90-97; Ex. I). For math, the Student attended a mainstream class. Id. Within the Student’s classroom, the Student does well in small group instruction for reading activities, and if necessary, she can receive 1:1 support. (Ex. I). Further, the Student participates in a social skills class. The record demonstrates that the tailored supports that the Academy implemented, the Student has made progress since the beginning of the school year. Id.

Overall, the record demonstrates the Academy was an appropriate unilateral placement in that it provides small, structured, supportive classrooms with teachers who have training and evidence-based approaches, and the Student made progress at the Academy for the school year at issue. The Academy provided the Student with educational instruction that was specifically designed to meet the Student’s unique special education needs and services to permit her to benefit from educational instruction. (See generally, Tr. October 11, 2023, November 9, 2023; Ex. B, F, 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.

Based upon the foregoing, by the preponderance of the evidence, the Parent has met its second prong of the three Burlington/Carter criteria that the Student’s unilateral placement at the Academy is appropriate for retroactive tuition for the 2021-2022 school year.

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] 5F Carter, 510 U.S. at 16 (citation omitted).

Here, the record demonstrates the Parents acted reasonably with the District. (See generally, Tr. October 11, 2023, 63; Ex. C). Further, the record is devoid of evidence establishing that the cost of the private education was unreasonable, and 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 Parent was under a contractual obligation to pay the tuition at the School. (Ex. E, H). The Parent provided the family’s tax returns (Ex. G) and testified that it would be a hardship for to pay the tuition. (Tr. October 11, 2023, 63). Direct payment under such circumstances may be ordered. The Parent request direct funding for the sum of $45,000.00 for the Student’s tuition with related services at the Academy for the school year at issue. (Ex. E, H).

Additionally, the record demonstrates that the non-secular/religious instruction made up 29% of instructional time, and the secular instruction is 71% of instructional time. (Tr. October 11, 2023, 54-55; Ex. H). Based upon the foregoing, the parents are requesting direct funding/reimbursement for the Student’s tuition with related services at the Academy for the total amount of $31,950.00. Based on the foregoing, the equities lean in favor of the Parent to support the Parents’ claim for direct funding/reimbursement for tuition at the Academy for the 2021-2022 school year. 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 tuition at the Academy for the Student’s 2021-2022 school year.

Based upon the FINDINGS OF FACT AND CONCLUSIONS OF LAW, it is hereby

ORDERED for the 2021-2022 school year the following:

1) The DOE failed to meet its burden of proof to demonstrate that the Student was provided a FAPE for the 2021-2022 school year. Thus, the Student was deprived a FAPE for the 2021-2022 school year;

2) The Parent has met its burden and demonstrated that the unilateral placement of the Student in the Academy for the 2021-2022 school year was an appropriate placement and provides an education instruction that is specifically designed to meet this Student’s unique needs; and

3) 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 2021-2022 school year, the DOE is to directly fund for the sum of $31,950.00 for the Student’s tuition with related services at the Academy for the school year at issue, minus any payments made through pendency. (Ex. E, H, IHO II).

DATED: December 12, 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 02-13-2023 Due Process Complaint with Receipt 04 B 03-06-2023 Findings of Fact and Decision, Case # 223535 18 C 08-17-2021 Ten Day Notice Letter with E-Receipt 04 D 09-23-2021 Parent Follow Up Letter with E-Receipt 04 E 06-13-2021 Enrollment Contract 02 F Undated Class Schedule 02 G 02-15-2021 Parent Tax Documents (2020) 02 H 07-21-2022 Tuition Affidavit 01 I 06-21-2022 Progress Report 03

IHO’s Exhibits:

I. Parent’s Closing Brief 12/6/2023 10

II. Pendency Order 5/1/2023 4

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