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CASE NUMBER: 597138 - NYC: 246513
FINDINGS OF FACT AND DECISION
Student’s Name: [REDACTED] (“Student”)
Date of Birth: [REDACTED]
School District: [REDACTED]
Hearing Requested by: [REDACTED] (“Parents”)
Request Date/Date Complaint Filed: March 8, 2023
Date(s) of Hearing: August 9, 2023
Actual Record Closed Date: August 16, 2023
Date of Decision: August 30, 2023
Time Sensitive Yes
Hearing Officer: Robin Levin, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
AUGUST 9, 2023
For the Student:
[REDACTED] (“Parents’ Attorney”)
[REDACTED] (“Parents”)
[REDACTED] (“CSE Liaison at the Private School”)
For the Department of Education:
[REDACTED] (“DOE Attorney”)
INTRODUCTION
This is a decision rendered after a due process hearing (“DPH” or “hearing”) pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1400 et seq., and its implementing regulations, 34 C.F.R. §300 et seq., the New York State Education Law, Educ. Law Article 89 §4404 et seq., and its implementing regulations, 8 NYCRR §200.5 et seq.[1] This case concerns Student, an [REDACTED] -year-old, who presents with language-based and attentional challenges and is in need of special education programs and services. [2]
On March 8, 2023, the Parents, through their attorney, filed a Due Process Complaint (“DPC”) against the New York City Department of Education (“DOE” or District”).[3] In the DPC, the Parents alleged that the DOE failed to offer the Student a Free Appropriate Public Education (“FAPE”) for the 2021-2022 school year.[4] The Parents alleged that the Committee on Special Education (“CSE”) last convened in December of 2020 to develop an Individualized Education Program (“IEP”) for the Student.[5] The CSE recommended an Integrated Co-Teaching (“ICT”) classroom with Special Education Teacher Support Services (“SETSS”), speech-language therapy, physical therapy, occupational therapy, and counseling services.[6] The Student remained in the recommended program during the 2020-2021 school year, although his public school placement changed in January of 2021. [7]
By the end of the 2020-2021 school year, the Parents did not believe the program and placement were appropriate for the Student because the ICT classroom with related services were not meeting the Student’s needs.[8] The Parents believed the Student needed a small, specialized program based on the recommendations of the Neuropsychologist.[9] Therefore, the Parents unilaterally placed the Student in a private school (“Private School”) for the 2021-2022 school year.[10] The Parents argued that the Private School was an appropriate placement for the Student for the 2021-2022 school year.[11] By way of relief, the Parents seek an award of tuition reimbursement for the Student’s attendance at the Private School for the 2021-2022 school year. [12] The Parents alleged that the equities support their claim for tuition reimbursement for the school year at issue since the Parents fully cooperated with the CSE and properly served a Ten-Day Notice. [13]
As discussed below, I find that the DOE denied the Student a FAPE for the 2021-2022 school year. I find that the Private School provided the Student specially designed instruction sufficient to meet the Student’s needs. I find that the equities support the Parents’ request for tuition reimbursement.
PROCEDURAL HISTORY
On March 12, 2023, I was appointed as the Impartial Hearing Officer (“IHO”). On April 12, 2023, the parties appeared via videoconferencing for a pre-hearing conference (“PHC”). During the PHC, the Parents’ Attorney indicated that the DOE previously recommended the case for settlement and therefore, the Parents already provided the DOE with the necessary documents for settlement purposes.[14] The DOE Attorney indicated that she needed an opportunity to review the documents and confirm that this matter is on the settlement track.[15] At this time, the parties jointly requested an extension of the compliance date, which I granted. [16]
Several status conferences were held on May 3, 2023, May 19, 2023, June 2, 2023, July 6, 2023, and July 18, 2023. On May 3, 2023, the DOE Attorney indicated that the case may not be recommended for settlement anymore and she needed two additional weeks to investigate.[17] On May 19, 2023, the DOE Attorney did not appear to provide an update, and the Parents’ Attorney requested an extension of the compliance timeline for settlement purposes, which I granted. 18 On June 2, 2023, the DOE indicated the case was still under investigation,[19] and on July 6, 2023, the DOE Attorney failed to appear at the status conference again to provide an update. The Parents’ Attorney asked for an extension of the compliance date, which I granted to allow the DOE one last opportunity to explain whether the case was in fact referred for settlement.[20] On July [18], 2023, both parties appeared and a DPH was scheduled for August 9, 2023. [21]
A virtual DPH was held on August 9, 2023. It was a closed hearing. The Student’s Parents were present and represented by the Parents’ Attorney. The DOE Attorney was also present. The DOE Attorney declined to give an opening statement.[22] The DOE Attorney declined to admit any documentary evidence into the hearing record or call any witnesses at the hearing but did not concede that the Student was not provided a FAPE for the 2021-2022 school year.[23] The Parents’ Attorney gave an opening statement and entered 11 exhibits into the hearing record without objection, including affidavit testimony from Parent 1 and affidavit testimony from the CSE Liaison at the Private School.[24] The DOE Attorney declined to cross-examine Parent 1.[25] The CSE Liaison at the Private School testified live for cross-examination and re-direct examination. [26] The Parents rested, the parties gave closing statements, and the Parents requested to extend the compliance date, which I granted on August 16, 2023 after receipt of the hearing transcript.[27] The record was closed on August 16, 2023.
The DOE took the position that although the DOE did not put on a case to defend Prong 1 of the Burlington/Carter standard and did not try to admit any documentary evidence into the hearing record or call any witnesses at the hearing, the Parents failed to meet their burden at the hearing to show that the unilateral placement at the Private School was appropriate for the Student.[28] The DOE Attorney argued that the CSE Liaison at the Private School who testified in this matter “was not involved in the admissions process nor involved in making the Student’s schedule” so therefore, the hearing record does not show, “if at all, how [the Student’s] schedule was individualized.”[29] In addition, the DOE Attorney argued that “with regards to related services, it's unclear how many sessions the Student actually attended… [since] the witness actually never spoke with the related service providers.”[30] The DOE Attorney did not make any arguments as to the equities.
The Parents took the position that the DOE failed to meet its burden at the hearing to show that the Student was provided a FAPE for the 2021-2022 school year since the DOE did not provide any documentary evidence and did not present any witnesses at the hearing.[31] In addition, the Parents argued that the entire hearing record demonstrates that the unilateral placement at the Private School was appropriate for the Student for the 2021-2022 school year since the Private School provided the small special education program for students with language-based learning disabilities recommended by the Neuropsychologist.[32] Lastly, the Parents argued that the DOE did not raise any equity issues and regardless, the evidence shows that the Parents fully cooperated with the DOE, providing a timely ten-day notice and participating in the IEP meeting. [33]
FINDINGS OF FACT
After a full review of the hearing record, I make the following findings of fact and determinations. Overall, I find all exhibits admitted into the hearing record to be relevant and representative of the facts for which they were offered. As for the witnesses, I find no reason to doubt the veracity of their testimonies and therefore, I find all the witnesses credible. I base the following on the record generated at the hearing.
The Student is currently [REDACTED] years old and was in the first grade at the Private School for the 2021-2022 school year.[34] The Student “is an enthusiastic, energetic child, well-liked by his peers, and comes across as witty, smart, likable and interactive.”[35] The Student has previously been identified as a student with a disability by the DOE’s CSE.[36] According to the Neuropsychological Evaluation which occurred in January of 2020, the Student was diagnosed with mild childhood apraxia of speech, moderate mixed receptive-expressive language disorder, and moderate phonological disorder.[37] The Student’s disabilities impact him in school since he has “significant speech and language delays that impact his functioning and learning.”[38] The Student has deficits in articulation, expressive language, attention, information processing, and phonological awareness.[39] The Neuropsychologist recommended “placement in a small special education school and class that specializes in educating bright students with language-based learning needs.” [40]
For the 2020-2021 school year, the Student remained in public school in an ICT classroom with related services despite the recommendations of the Neuropsychologist.[41] The CSE convened a meeting in December of 2020.[42] At this IEP meeting, Parent 1 explained to the CSE that the Student’s “attention, language and learning needs were making it very hard for him to keep up with the [ICT] class.”[43] The CSE recommended group SETSS and counseling services to be added to the Student’s ICT program.[44] Therefore, in January of 2021, the Student’s public school placement changed but he remained in an ICT classroom with group SETSS and counseling services per his December 2020 IEP. [45]
However, by the end of the 2020-2021 school year, the Parents remained concerned about the Student’s program and believed it was too large of a setting and not in line with the recommendation of the Neuropsychologist.[46] The Parents were concerned that the Student’s needs would continue to not be met in an ICT classroom for the 2021-2022 school year, so prior to the commencement of the school year at issue, on June 11, 2021, the Parents enrolled the Student at the Private School and executed an Enrollment Contract for the 2021-2022 school year. [47] According to the Enrollment Contract, the Parents were liable for the entire cost of tuition in the amount of $63,500.00.[48] The Parents have paid the entire amount in full. [49]
On August 24, 2021, the Parents wrote a letter to the CSE (“Ten-Day Notice”) through their attorney expressing their concerns with the December 2020 IEP.[50] The Ten-Day Notice informed the DOE about the Parents’ intention to enroll the Student at the Private School and seek reimbursement for the 2021-2022 school year if the DOE failed to address the Parents’ concerns and offer the Student a FAPE.[51] The DOE did not reply and did not reconvene an IEP meeting to address the Parents’ concerns regarding the Student’s program and placement for the upcoming 2021-2022 school year. [52]
For the 2021-2022 school year, from September 9, 2021 to June 15, 2022, the Student attended the Private School.[53] The Student missed six instructional days during the academic school year.[54] The Private School is a co-educational special education school for students with language-based learning disabilities serving kindergarten through twelfth grade.[55] The Private School “provides a supportive, structured, nurturing, and fun environment” and “students learn in small group settings, which are designed to meet their individual needs.” [56]
The Private School employs “highly qualified trained teachers who specialize in methods to ensure students’ progress.”[57] Students are groups into “clusters” and the teachers work closely with “cluster” leaders, the Private School’s principal, social workers, therapists, and literacy coaches to discuss the students’ progress and the individual needs of each student.[58] The staff members at the Private School are provided with professional development and trainings throughout the school year such as a four-day intensive program training during the beginning of the school year, and new teachers receive additional training prior to the beginning of the school year.[59] The staff members at the Private School are trained specifically to work with students with language-based learning disabilities using methods such as “Fundations, Math in Focus/Singapore Math, multisensory instruction, and writing techniques.”[60] They also are trained in working with students exhibiting social-emotional difficulties and deficits in executive functioning, attention, and self-regulation.[61] Students also receive related services such as speech-language therapy, occupational therapy, and counseling services by licensed providers at the Private School. [62]
As a small school serving students with language-based learning disabilities, a typical class at the Private School has ten to twelve students with at least two teachers providing a New York State Regents curriculum.[63] For the 2021-2022 school year, the Student was placed in a cluster with ten students and two co-head teachers who are both certified in special education.[64] The Student’s cluster included appropriate social peers for the Student who also struggle with language-based challenges and need structure to remain focused throughout the day.[65] The Student’s schedule consisted of Fundations (decoding and encoding), Library, Social Skills, Social Studies, Health, Science, Physical Education, Art, Reading Comprehension, STEAM, Music, and Math.[66] The Student was grouped into smaller clusters of five or less students and received additional 1:1 academic support and instruction as needed. [67]
At the beginning of the school year, the Student exhibited difficulty remaining attentive and required several supports in the classroom, “including frequent redirection, repetition, scaffolding, teacher prompting, rephrasing of questions and/or expectations, positive reinforcement and 1:1 teacher support for academic work. [The Student] also needed 1:1 support for understanding instructions and extensive repetition… [and] extended time to support his language processing needs.”[68] The teachers used the Wilson Fundations reading program to teach encoding and decoding to the Student, which is a “research-based multisensory language based program that aligns with Orton Gillingham principles, and offers direct, explicit and cumulative instruction.”[69] The CSE Liaison at the Private School testified on cross-examination that she has observed the Student in his classes and the teachers and related service providers often provided frequent redirection to the Student to allow him to participate in academic tasks. [70]
The Student was placed in a smaller cluster of five students and two teachers for Fundations because he required small group instruction with 1:1 support with individualized modifications as needed.[71] The entire literacy program provided to the Student consisted of Fundations, reading comprehension, and writing.[72] Fundations is used across the entire curriculum as it incorporates multisensory decoding and encoding strategies in order to meet Student’s needs and address his language-based disability.[73] The Student was provided sequential instruction in phonics and decoding in a structured setting where information was taught at a slow place, broken down, reviewed, and reinforced to allow the Student to learn. [74]
During the second semester of the 2021-2022 school year, the Student received additional support for decoding by meeting with the Private School’s literacy specialist twice per week for individual sessions.[75] Regarding reading comprehension, the Student needed scaffolding, rephrasing, prompting, extended time, and 1:1 support.[76] Similarly, to improve the Student’s writing, the teachers used the handwriting without tears curriculum with visual references, writing paper with grid lines, and provided 1:1 support for writing tasks to help the Student brainstorm and stay focused.[77] By the end of the 2021-2022 school year, the Student improved in reading and in writing by using the strategy of tapping with learned patterns.[78] The Student improved in recognizing letters and words on the page, and although he required extensive 1:1 support to stay on task, he was able to complete writing assignments especially when a subject was of interest to him. [79]
For math, the teachers used the Math in Focus program to teach the Student, which helps students with language-based learning disabilities and supported the Student’s attentional difficulties.[80] The use of frequent repetition along with breaking down topics into multiple components helped the Student access the curriculum and remain engaged.[81] The Student’s math lessons included manipulatives and games to support his ability to recognize numbers, number sense, and number formation.[82] The Student developed “a very strong number sense and computational ability” and “benefited from support to understand how to solve word problems.”[83] In all of the Student’s classes, the 1:1 support provided to the Student was critical to enable him to learn.[84] Parent 1 testified that she has seen dramatic improvements in the Student’s verbal and written communication and articulation. [85]
Furthermore, the Private School also provided related services to the Student including speech-language therapy, occupational therapy, and social skills/counseling services.[86] The Student received speech-language therapy twice per week for 30-minute sessions, which targeted the Student’s word knowledge and understanding of what, where, who and when questions, and worked on story-retelling, sentence structures, and grammar.[87] The CSE Liaison at the Private School testified that she has seen improvement in the Student’s literacy skills overall.[88] In addition, the Student received occupational therapy nine times per month for 30-minute sessions, working on his upper extremity strength, gross motor skills, letter formation, number formation, and his sensory and regulation skills.[89] He demonstrated improvement in his handwriting skills, visual motor control, and ability to stay in the lines.[90] Moreover, in his social skills/counseling sessions, the Student worked on how to respond to his peers and how to appropriate express his feelings. [91]
CONCLUSIONS OF LAW AND ANALYSIS
This case concerns the Parents’ request that the DOE reimburse them for the cost of the Student’s tuition for the 2021-2022 school year.[92] When a parent believes that a school district has failed to provide a student with a FAPE, a parent may unilaterally enroll the child in a private school and seek tuition payment from the school district by filing a due process complaint.[93] The due process complaint may address “any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education.” [94]
A district must pay for the cost of a student’s tuition at a private school if the three “prongs” of the Burlington/Carter test are met: (1) the district denied the student a FAPE; (2) the private school unilateral placement is appropriate; and (3) the equities favor an order of tuition reimbursement or funding.[95] In due process hearings under the IDEA in New York, school districts have the burden of proof, including the burden of production and burden of persuasion. However, there is an exception in that a parent seeking tuition reimbursement or funding for a unilateral parental placement has the burden of persuasion and burden of production regarding the appropriateness of such placement. [96]
Prong 1
The IDEA and the New York Education Law require school districts to offer a FAPE to each child with a disability residing in their district who requires special education programs or services.[97] A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written IEP.[98] A school district has offered a student a FAPE when it complies with the procedural requirements set forth in the IDEA, and the IEP is reasonably calculated to enable the student to receive educational benefits.[99] Under the IDEA, students with disabilities are entitled to be educated in the least restrictive environment that meets their unique needs. [100]
Parents may allege procedural and/or substantive FAPE violations. For procedural violations, a denial of a FAPE only occurs “if the procedural inadequacies- (I) impeded the child’s right to a [FAPE]; (II) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a [FAPE] to the parents’ child; or (III) caused a deprivation of educational benefits.” [101]
To meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”[102] The District must offer “an IEP that is ‘likely to produce progress, not regression,’ and ... affords the student with an opportunity greater than mere ‘trivial advancement.’”[103] A school district must be able to “offer a cogent and responsive explanation for their decisions” in creating the IEP.[104] The IEP must be reviewed at least annually, and a district must have an IEP in place for each student with a disability within its jurisdiction at the beginning of each school year.[105] The IEP should: (1) accurately reflect the results of evaluations to identify the student’s needs, 106 (2) provide for the utilization of sufficient special education programs or services,[107] and then (3) the IEP must be properly and timely implemented.[108] Failure to implement substantial or significant provisions of an IEP is a denial of a FAPE. [109]
In this case, the Parents alleged that the DOE denied the Student a FAPE for the 2021-2022 school year.[110] The Parent alleged the last IEP developed for the Student was in December of 2020 and was inappropriate for the Student for numerous reasons: 1) the CSE “did not conduct, secure, or rely on sufficient evaluative measures to make a determination of the Student’s present levels of performance, educational and cognitive profile, and areas of need, including functional behavioral needs,” 2) the present levels of performance section failed to appropriately describe the Student’s strengths and weaknesses and failed to note the Parents’ concerns or the results of evaluations, 3) the management needs listed in the IEP were insufficient for the Student and did not address all of the issues discussed at the IEP meeting, and 4) the annual goals and objectives in the IEP do not address all of the Student’s deficits and the goals that were listed failed to specify actual targets to be achieved and how the Student would achieve the goals.[111] Moreover, the Parents alleged that they provided the CSE with the Neuropsychological Evaluation and Parent 1 explained her concerns regarding the Student’s language-based learning disability and attentional issues during the IEP meeting and that an ICT classroom would be too large to support the Student’s needs, but the CSE recommended an ICT classroom for the Student nonetheless and then never reconvened prior to the commencement of the 2021-2022 school year despite the Parents’ providing the Ten-Day Notice in August of 2021. [112]
As to Prong 1 of the Burlington/Carter standard, I find that the DOE failed to meet its burden at the hearing. The DOE Attorney did not seek to admit any documentary evidence into the record, not even the IEP at issue. In addition, the DOE attorney waived the DOE’s opening statement and did not present any witness testimony.[113] Therefore, the DOE declined to offer any evidence at all of a FAPE being provided to the Student and declined to “offer a cogent and
106
34 C.F.R. § 300.320(a)(1); 8 N.Y.C.R.R. 200.4(d)(2)(i); Tarlowe v. Dep't of Educ., 2008 WL 2736027, at 6 (S.D.N.Y. July 3, 2008). responsive explanation for their decisions” in creating the December 2020 IEP. It is through the IEP that “[t]he ‘free appropriate public education’ required by the Act is tailored to the unique needs of” a particular child.[114] The DOE did not present any evidence at all and thus, could not rebut the Parents’ allegations. I find Parent 1’s testimony regarding the December 2020 IEP credible. The CSE should have reconvened prior to the 2021-2022 school year and at latest in December of 2021 for an annual review, but the evidence in the hearing record shows that the last IEP meeting for the Student was in December of 2020.[115] Therefore, I find that the DOE failed to offer the Student a FAPE for the 2021-2022 school year.
Prong 2
Next, I must consider whether the Parents’ unilateral placement at the Private School was appropriate for the Student. A unilateral private school placement is appropriate if it is “reasonably calculated to enable the child to receive educational benefits.”[116] Parents need not show that the unilateral placement is perfect or that it meets all state educational standards.[117] Instead, parents must “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.”[118] In addition, parents seeking reimbursement or tuition funding “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.”[119] While there are some exceptions, “’the same considerations and criteria that apply in determining whether the [DOE’s] placement is appropriate should be considered in determining the appropriateness of the parents’ placement.’” [120]
A unilateral placement is appropriate if it provides instruction specially designed to meet the unique needs of a student.[121] The determination of whether the unilateral placement serves a student’s individual needs and is reasonable calculated to enable a student to receive educational benefits does not depend only on one factor. Instead, courts assessing the appropriateness of a unilateral placement must consider the totality of the circumstances, including but not only, academic progress demonstrated through grades, test scores, progress reports, and regular advancement. [122]
The DOE Attorney alleged in the DOE’s closing statement that the Parents’ unilateral placement is not appropriate. I disagree. A private school placement must be “proper under the Act.”[123] This means that the Private School must offer an educational program which meets the Student’s special education needs.[124] I find that the Private School meets the Frank G. standard and provides the Student educational instruction that is designed to meet the Student’s unique needs and enable the Student to make progress.
Primarily, the Private School is appropriate because it provides the Student with individualized attention and instruction with similarly functioning peers. This “comes within the IDEA definition of ‘special education,’ namely, ‘specially designed instruction . . . to meet the unique needs of a child.’”[125] The hearing record shows that the Private School serves students with language-based disabilities and developed a specialized program and placed the Student in a cluster with ten students and two co-head teachers who are both certified in special education. [126] The Student’s cluster included appropriate social peers for the Student who also struggle with language-based challenges and need structure to remain focused throughout the day. [127]
Furthermore, the record demonstrates that the Private School adapted instruction specifically targeting the Student’s speech-language deficits and provided the Student with 1:1 academic instruction and support, which helped him access a meaningful education.[128] For the 2021-2022 school year, the Student was placed in a smaller cluster of five students and two teachers for Fundations because he required small group instruction with 1:1 support with individualized modifications as needed.[129] The entire literacy program provided to the Student was tailored to address his needs and consisted of Fundations, reading comprehension, and writing, incorporating multisensory decoding and encoding strategies in order to meet Student’s needs and address his language-based disability.[130] The Student was provided sequential instruction in phonics and decoding in a structured setting where information was taught at a slow place, broken down, reviewed, and reinforced to allow the Student to learn.[131] During the second semester of the 2021-2022 school year, the Student received additional support for decoding by meeting with the Private School’s literacy specialist twice per week for individual sessions. [132]
Additionally, the Private School is appropriate because it provided the Student with instruction from trained teachers. The law in this circuit is that “a private placement need not provide certified special education teachers…for the disabled student,” but in this case, the Private School nevertheless ensures that its teachers have the training and specialization necessary to teach the Student based on his needs.[133] The evidence shows the Student’s teachers were certified in special education, and the Private School employs “highly qualified trained teachers who specialize in methods to ensure students’ progress.”[134] The staff members at the Private School are provided with professional development and trainings throughout the school year such as a four-day intensive program training during the beginning of the school year, and new teachers receive additional training prior to the beginning of the school year.[135] The staff members at the Private School are trained specifically to work with students with language-based learning disabilities.[136] Therefore, I find that the teachers have sufficient training to teach the Student based on his unique needs and learning profile.
Moreover, the Private School is appropriate because the Student made progress at the school. Significant educational progress can be a factor weighing in favor of the appropriateness of the parent’s unilateral placement.[137] While a student’s progress at the private placement is not by itself sufficient to determine whether a placement is appropriate, that progress is a relevant factor in assessing the appropriateness of the placement.[138] In this case, the Student has made progress. By the end of the 2021-2022 school year, the Student improved in reading and in writing by using the strategy of tapping with learned patterns.[139] The Student improved in recognizing letters and words on the page, and although he required extensive 1:1 support to stay on task, he was able to complete writing assignments especially when a subject was of interest to him. [140]
For math, the teachers used the Math in Focus program to teach the Student, which helps students with language-based learning disabilities and supported the Student’s attentional difficulties.[141] The use of frequent repetition along with breaking down topics into multiple components helped the Student access the curriculum and remain engaged.[142] The Student’s math lessons included manipulatives and games to support his ability to recognize numbers, number sense, and number formation.[143] The Student developed “a very strong number sense and computational ability” and “benefited from support to understand how to solve word problems.”[144] In all of the Student’s classes, the 1:1 support provided to the Student was critical to enable him to learn.[145] Parent 1 testified that she has seen dramatic improvements in the Student’s verbal and written communication and articulation. [146]
Furthermore, the Private School is appropriate for the Student because it provided the Student with appropriate related services including speech-language therapy, occupational therapy, and social skills/counseling services, and the Student has shown progress in his related services.[147] The Student received speech-language therapy twice per week for 30-minute sessions, which targeted the Student’s word knowledge and understanding of what, where, who and when questions, and worked on story-retelling, sentence structures, and grammar.[148] The CSE Liaison at the Private School testified that she has seen improvement in the Student’s literacy skills overall.[149] In addition, the Student received occupational therapy nine times per month for 30-minute sessions, working on his upper extremity strength, gross motor skills, letter formation, number formation, and his sensory and regulation skills.[150] He demonstrated improvement in his handwriting skills, visual motor control, and ability to stay in the lines.[151] Moreover, in his social skills/counseling sessions, the Student worked on how to respond to his peers and how to appropriate express his feelings. [152]
Overall, the hearing record establishes that the Student’s unique special education needs have been met by the Private School. The instruction offered at the Private School was “reasonably calculated to enable the child to receive educational benefits.”[153] I find the DOE’s arguments concerning the appropriateness of the Parents’ unilateral placement without merit, and I find that the Parents have met their burden in proving that the Private School offered an educational program which met the Student’s needs under Prong 2 of the Burlington/Carter standard.
Prong 3
Under Burlington/Carter, if the parents are financially obligated to pay for the contracted tuition costs and have met their prong 2 burden, the contract must be fully reimbursed or directly funded by the district unless, as a matter of equitable considerations, the costs are excessive or should otherwise be reduced.[154] The courts have “broad discretion to consider the range of all relevant facts in determining whether and to what extent awarding relief is equitable.”[155] Even if a parent establishes a right to reimbursement under the IDEA, "courts retain discretion to reduce the amount of a reimbursement award if the equities so warrant."[156] “[A] major consideration in deciding whether the third factor is satisfied is whether the parents have cooperated with the [DOE] throughout the process to ensure their child receive[s] a FAPE.”[157] Specifically, equitable considerations include the parents’ participation in IEP meetings, visits to the proposed school placements, and notification of their unilateral placement decision to the District.[158] In addition, a hearing officer may consider many additional factors, including whether a parent’s unilateral withdrawal of the child from the public school was justified, whether the parent should have sought need-based scholarships or other financial aid from the private school, whether there was any fraud or collusion in generating, or inflating, the tuition to be charged to the school district, and whether the arrangement with the school was fraudulent or collusive in any other respect. [159]
I find that the equities favor the Parents’ claims. Here, not only did the Parents fully cooperate with the CSE, but the evidence also shows that Parent 1 fully participated in the IEP process.[160] The Parents’ cooperation and participation weighs in favor of the Parents’ request for a tuition award under Prong 3 of the Burlington/Carter standard.[161] Here, Parent 1 participated in the December 2020 IEP meeting.[162] Additionally, the Parents shared their concerns regarding the Student’s language-based disability and attentional issues with the CSE and the Parents provided the CSE with the Neuropsychological Evaluation.[163] Furthermore, the Parents provided the necessary Ten-Day Notice of their concerns with the DOE’s offer of FAPE for the Student for the 2021-2022 school year and their intent to unilaterally place the Student in the Private School.[164] The DOE did not submit any evidence at the hearing describing its response to the Ten-Day Notice, if any, and according to Parent 1’s testimony, the DOE did not respond.[165] The DOE also did not raise any equity issues at the hearing.
Lastly, “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.”[166] As discussed above, the Parents signed an Enrollment Contract, and according to the Enrollment Contract, the Parents were liable for the entire cost of tuition in the amount of $63,500.00.[167] The Parents have paid the entire amount in full.[168] I find that this cost is reasonable.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby: ORDERED that Parents’ claim for reimbursement for the Student's unilateral placement at the Private School is GRANTED for the 2021-2022 school year. The New York City Department of Education shall reimburse the Parents in the amount of $63,500.00 within 15 days of the date of this Order. The DOE shall not require any documentation that is not already in the hearing record to issue reimbursement to the Parents.
SO ORDERED.
DATED: August 30, 2023
Robin Levin, Esq.
Impartial Hearing Officer
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 – EXHIBITS ENTERED INTO THE RECORD
PARENT EXHIBITS
A. Request for Impartial Hearing 3/8/2023 5 pages
B. Ten-Day Notice 8/24/2021 3 pages
C. Neuropsychological Evaluation January 2020 13 pages
D. Tuition Contract 6/11/2021 5 pages
E. Tuition Affidavit 6/8/2022 1 page
F. Student Attendance 2021-2022 1 page
G. Student Schedule 2021-2022 1 page
H. Private School Program Description Undated 1 page
I. End of Year Progress Report Affidavit of Direct Testimony, CSE Liaison at the June 2022 9 pages
J. Private School 8/2/2023 8 pages
K. Affidavit of Direct Testimony, Parent 8/8/2023 4 pages
DOE EXHIBITS
None
IHO EXHIBITS
None
Footnotes
[1] Exhibits will be referred to as “Ex.” followed by lettered designations for Parents’ Exhibits, numbered designations for DOE’s Exhibits, and uppercase roman numeral designations for Impartial Hearing Officer’s Exhibits. Exhibit designations will be followed by the page numbers as needed and appropriate. For example, Parents’ Exhibit A, page 1, will be referred to as (Ex. A-1). Transcripts will be referred to as “Tr.” followed by the page number(s) within the transcript and the type of conference or hearing and/or dates as needed.
[2] Ex. A.
[3] Id.
[4] Id.
[5] Ex. A; Ex. K-2. The DPC contains clerical errors and refers to December 8, 2021 as the date of the last IEP meeting. However, during Parents’ Attorney’s opening statement and in Parent 1’s affidavit, it was clarified that the last IEP meeting occurred in December of 2020 (See DPH Tr. 30-31).
[6] Ex. A-1; Ex. K-2.
[7] Ex. K-2.
[8] Ex. A; Ex. K.
[9] Ex. K-2.
[10] Ex. A; Ex. K.
[11] Ex. A; Ex. J; Ex. K; DPH Tr. 57-60.
[12] Ex. A. The DPC also requests transportation but there is no evidence in the hearing record regarding transportation and there was no request for transportation at the hearing, so this claim is deemed abandoned and will not be discussed further. In addition, the DPC also requests attorney’s fees. Since I do not have the authority to grant attorney’s fees, this request will not be discussed herein.
[13] Ex. A.
[14] PHC Tr. 5.
[15] PHC Tr. 6.
[16] PHC Tr. 5-6; See Order of Extension 1.
[17] SC 5/3/2023 Tr. 5.
[18] SC 5/19/2023 Tr. 5; See Order of Extension 2.
[19] SC 6/2/2023 Tr. 5. A different agency attorney appeared for the DOE on this date.
[20] SC 7/6/2023 Tr. 3-4; See Order of Extension 3.
[21] SC 7/18/2023 Tr. 10-18.
[22] DPH Tr. 26-27.
[23] DPH Tr. 24, 28-29.
[24] DPH Tr. 26, 30-33. A detailed list of the admitted exhibits is attached to this decision as Appendix A, “Exhibits Entered Into the Record.”
[25] DPH Tr. 34.
[26] DPH Tr. 35-55.
[27] DPH Tr. 55-61; See Order of Extension 4.
[28] DPH Tr. 56.
[29] Id.
[30] Id.
[31] DPH Tr. 57.
[32] DPH Tr. 57-59.
[33] DPH Tr. 59-60.
[34] Ex. A; Ex. J-3.
[35] Ex. K-1.
[36] Ex. K.
[37] Ex. C.
[38] Ex. C-2.
[39] Id.
[40] Ex. C-4.
[41] Ex. K.
[42] Id. Since the Student’s last IEP was not offered into the hearing record, all discussion regarding the December 2020 IEP is based on the testimony of Parent 1.
[43] Ex. K-2.
[44] Id.
[45] Id.
[46] Id.
[47] Ex. D.
[48] Id.
[49] Ex. E-1.
[50] Ex. B.
[51] Id.
[52] Ex. K-3.
[53] Ex. F-1.
[54] Id.
[55] Ex. J-1.
[56] Ex. H-1.
[57] Ex. J-1.
[58] Ex. J-2.
[59] Id.
[60] Id.
[61] Id.
[62] Ex. J-3.
[63] Ex. J-2-3.
[64] Ex. J-3-4; DPH Tr. 40.
[65] Ex. J-4.
[66] Ex. G-1.
[67] Ex. J-4-7.
[68] Ex. J-4.
[69] Ex. J-4-5.
[70] DPH Tr. 39.
[71] Ex. J-4.
[72] Ex. J-5.
[73] Id.
[74] Id.
[75] Ex. J-5-6.
[76] Ex. J-6.
[77] Id.
[78] Ex. I-1.
[79] Ex. I-2.
[80] Ex. J-6.
[81] Ex. J-6-7.
[82] Ex. J-6.
[83] Ex. I-2-3.
[84] Ex. J-7.
[85] Ex. K-3.
[86] Ex. J-7. DPH Tr. 41-46.
[87] Ex. I-7; Ex. J-7.
[88] DPH Tr. 54.
[89] Ex. J-7.
[90] Ex. I-8; Ex. J-7.
[91] Ex. J-7-8.
[92] Ex. A.
[93] Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 376 (2d Cir. 2014) (quoting Reyes ex rel. R.P. v. New York City Dep’t of Educ., 760 F.3d 211, 215 (2d Cir. 2014)).
[94] 20 U.S.C. § 1415(b)(6)(A).
[95] Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 367 (1985); Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12-15 (1993).
[96] NY Educ. Law § 4404(1)(c)).
[97] 20 U.S.C. § 1412 (a)(1)(A); Education Law §§ 4402(2)(a), (b)(2).
[98] 34 C.F.R. §300.13.
[99] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
[100] Oberti v. Board of Educ., 995 F.2d 1204 (3rd Cir. 1993).
[101] 20 U.S.C. §1415 (f)(3)(E)(ii); 34 C.F.R. §300.513(a)(2).
[102] Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017).
[103] Cerra, 427 F.3d at 195, quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998).
[104] Endrew F.,137 S.Ct. 988, 999.
[105] 34 C.F.R. §300.324(b)(1)(i); 8 N.Y.C.R.R. §200.4(e)(1)(ii); Davis v. Wappingers Cent. Sch. Dist., 772 F. Supp. 2d 500, 508 (S.D.N.Y. 2010).
[107] 34 C.F.R. § 300.320(a)(4); 8 N.Y.C.R.R. 200.4(d)(2)(v).
[108] See 8 N.Y.C.R.R. 200.4(e)(7); Application of a Child with a Disability, Appeal No. 08-087.
[109] J.L. v. New York City Dep't of Educ., 324 F. Supp. 3d 455, 467 (S.D.N.Y. 2018); Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 (5th Cir. 2000); Davis v. Wappingers Cent. Sch. Dist., 431 Fed. App. 12, 14 (2d Cir. 2011).
[110] Ex. A.
[111] Id.
[112] Ex. A; Ex. B; Ex. K.
[113] DPH Tr. 24-29.
[114] Endrew F., 137 S.Ct. at 1002.
[115] Ex. K.
[116] Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006); Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007).
[117] Frank G., 459 F.3d at 364-65; T.K. v. New York City Dept. of Educ., 810 F.3d 869, 878 (2d Cir. 2016); M.S. v. Yonkers Bd. of Educ., 231 F.3d 96, 105 (2d Cir. 2000).
[118] Frank G., 459 F.3d 356, 364; Gagliardo, 489 F.3d 105, 112.
[119] Gagliardo, 489 F.3d at 112.
[120] Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d 356, 364.
[121] 20 U.S.C. § 1401(29); Educ. Law § 4401(1); 34 C.F.R 300.39(a)(1); 8 N.Y.C.R.R. 200.1(ww); Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 (2d Cir. 2014).
[122] Frank G., 459 F.3d at 364; See Gagliardo, 489 F.3d at 112.
[123] Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370.
[124] Gagliardo, 489 F.3d 105, 112,115; Walczak142 F.3d 119.
[125] Frank G., 459 F.3d at 365 (citing 20 U.S.C. § 1401(29)).
[126] Ex. H; Ex. J-3-4; DPH Tr. 40.
[127] Ex. J-4.
[128] Ex. J; Ex. I; Ex. J.
[129] Ex. J-4.
[130] Ex. J-5.
[131] Id.
[132] Ex. J-5-6.
[133] Frank G., 459 F.3d at 364.
[134] Ex. J.
[135] Id.
[136] Id.
[137] Frank G., 459 F.3d at 365 (citing Knable, 238 F.3d at 768).
[138] Weaver v. Millbrook Cent. Sch. Dist., 812 F. Supp. 2d 514, 523 (S.D.N.Y. 2011).
[139] Ex. I-1.
[140] Ex. I-2.
[141] Ex. J-6.
[142] Ex. J-6-7.
[143] Ex. J-6.
[144] Ex. I-2-3.
[145] Ex. J-7.
[146] Ex. K-3.
[147] Ex. I; Ex. J. DPH Tr. 41-46.
[148] Ex. I-7; Ex. J-7.
[149] DPH Tr. 54.
[150] Ex. J-7.
[151] Ex. I-8; Ex. J-7.
[152] Ex. J-7-8.
[153] Frank G., 459 F.3d at 364.
[154] See Carter, 510 U.S. at 16.
[155] J.S. v. Scarsdale Union Free Sch. Dist., 826 F.Supp.2d 635, 671 (S.D.N.Y. 2011).
[156] Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246-47 (2009).
[157] Bettinger v. New York City Bd. Of Educ., 2007 WL 4208560, at *6 (S.D.N.Y. Nov. 20, 2007).
[158] D.A. v. New York City Dep’t of Educ., 769 F. Supp. 2d 403, 419-20 (S.D.N.Y. 2011).
[159] E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014).
[160] Ex. K.
[161] M.H. v. N.Y.C. Dep’t of Educ., 685 F.3d 217, 254 (2d Cir. 2012).
[162] Ex. K.
[163] Id.
[164] 34 C.F.R. § 300.148(d)(1)(ii); Ex. B.
[165] Ex. K-3.
[166] Florence Cnty. Sch. Dist. Four v. Carter, 510 U.S. 7, 16, 114 S. Ct. 361 (1993); see also J.S. v. Scarsdale Union Free Sch. Dist., 826 F.Supp.2d 635, 671 (S.D.N.Y. 2011) (“[T]his Court has broad discretion to consider the range of all relevant facts in determining whether and to what extent awarding relief is equitable.”).
[167] Ex. D.
[168] Ex. E-1.