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NEW YORK CITY OFFICE OF ADMINISTRATIVE
TRIALS AND HEARINGS (OATH)
SPECIAL EDUCATION HEARINGS DIVISION
[REDACTED], a Minor, by and through his/her Parent(s),
PETITIONER
against
THE NEW YORK CITY DEPARTMENT OF EDUCATION,
RESPONDENT
Dr. Oren Varnai, Esq., Impartial Hearing Officer
FINDINGS OF FACT AND DECISION
NAMES AND TITLES OF PERSONS WHO APPEARED AT THE DUE PROCESS HEARING:
For the Student:
1. [REDACTED], Esq. for the parent, (hereinafter referred to as “Parent’s attorney”)
For the Department of Education:
1. [REDACTED], Esq. appeared on behalf of the DOE, (hereinafter referred to as “District’s Representative”)
Identifying Information Term Used In FOFD and/or Exhibit List
[REDACTED] Parent
[REDACTED] Private School
[REDACTED] Psychologist
I. Introduction
This proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482; the federal regulations implementing IDEA, 34 C.F.R. §§ 300.1, et seq.; Article 89 of the New York State Education Law; and the New York State regulations at 8 NYCRR § Part 200, et seq, as well as Section 504 of the Rehabilitation Act.
The undersigned Impartial Hearing Officer (“IHO”) is a certified New York State Special Education Hearing Officer, employed by the New York City Office of Administrative Trials and Hearings (“OATH”) as a Special Education Impartial Hearing Officer, and meets all of the qualifications and requirements outlined in both federal and state statute which grant the IHO the authority to adjudicate this hearing. Furthermore, the IHO is not currently, nor has ever been, an employee of the NYC Department of Education, and does not have any personal or professional interest or bias that conflicts with his objectivity to hear this matter.
II. Background and Procedural History
A. Due Process Complaint Notice
Petitioner (Parent) is the parent of Student (“Student” or “Child”). On 3/28/2023, Petitioner filed a Due Process Complaint (“Complaint” or “DPC”) against Respondent, the New York City Department of Education (“NYC DOE” or “DOE” or “District”). The parent alleged that the District failed to provide the Student a free appropriate public education (“FAPE”) for the 2022-2023 school year.
During the school year in which Parent filed the DPC, Student was classified with Speech or Language Impairment.
The Due Process Hearing (“DPH”) took place on 6/9/2023. DOE presented brief opening and closing statements but did not present any documentary evidence or testimony, but cross-examined Psychologist. Further, DOE did not defend Prongs I and III of the Burlington/Carter standards, and only challenged Prong II, the appropriateness of the unilateral placement. Parent presented documentary evidence, and the affidavit testimonies of Parent and Psychologist.
III. Findings of Fact and Decision
A. The DOE Deprived Student of a FAPE for the 2022-2023, 10-month, School Year (Burlington/Carter Prong I)
The IDEA (20 U.S.C. §§ 1400-1482) contemplates two specific purposes designed to ensure (1) 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) that the rights of students with disabilities and parents of such students are protected.[1] The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. [2]
A free and appropriate public education can be said to be 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.[3] "[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP."[4] The Supreme Court ruled that "[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement."[5]
"Multiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not,"[6] and the Second Circuit explained that not all procedural errors render an IEP legally inadequate under the IDEA.[7] Under the IDEA, if procedural violations are alleged, an IHO may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right 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. [8]
An IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE.[9] A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction,"[10] but the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP."[11] "The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created,"[12] and an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents,"[13] is what is required. School districts are not required to "maximize" the potential of students with disabilities,[14] but are required to provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement.'"[15]
The IEP must be "reasonably calculated to provide some 'meaningful' benefit,"[16] and designed to be provided in the least restrictive environment (“LRE”).[17] An appropriate IEP must include a description of the Student’s present levels of academic achievement and functional performance,[18] and outlines annual goals specifically designed to address the Student’s needs resulting from his disability in order to make progress in the general education curriculum[19] through the use of appropriate special education services.[20] Although not every student can be expected to attend a regular education curriculum, the IEP “must be appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives."[21]
DOE did not present Student’s IEP and offered no explanation as to how the CSE made its recommendation, how the IEP appropriately describes Student, or whether the IEP is meaningfully calculated to confer educational benefit. In short, the DOE declined to “offer a cogent and responsive explanation for their decisions” in creating that IEP, and 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.” [22]
As to Prong I of the Burlington/Carter standard, the DOE functionally conceded it had denied the Student with a FAPE for the 2022-2023, 10-month, school year, and failed to meet its burden at hearing. Therefore, I am constrained to find that the DOE failed to offer the Student FAPE for the 2022-2023, 10-month, school year. Moreover, a review of the record herein establishes that the weight of the evidence supports the conclusion that the DOE failed to offer Student an educational program reasonably calculated to offer FAPE.
B. The Unilateral Placement Was Appropriate (Burlington/Carter Prong II)
A private school placement must be "proper under the Act."[23] This means that the private school must offer an educational program which met the student's special education needs.[24] Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate."[25] Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement.'" [26]
Parents need not show that the placement provides every special service necessary to maximize the student's potential, and when determining whether a unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether the placement is "reasonably calculated to enable the child to receive educational benefits."[27] A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student. [28]
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. [29]
The DOE presented no evidence or rebuttal that Parent’s unilateral placement was inappropriate, and cross-examination of Psychologist bolstered Parent’s position that unilateral placement was appropriate. Private School Psychologist testified via affidavit and under cross-examination that he familiar with Student, and Student’s needs, placed Student in a classroom that would address those needs, and described the services Student was receiving at the Private School. Parent’s witnesses further testified that Student was making progress at Private School. Parent submitted Private School’s class scheduled, 30 Private School enrollment contract,[31] and Student’s psychoeducational evaluation report.[32] I find the testimony credible, and that the Private School provided Student with instruction specially designed to meet Student’s unique needs.
Based on the evidence presented at the hearing I find that Parents have met their burden in proving that the private program offered an educational program which met Student’s need under Prong II of the Burlington/Carter standard.
In reviewing the testimony and documents presented, the weight of the evidence establishes that Student’s individual special education needs were addressed by the Private School and that the instruction offered was "reasonably calculated to enable the child to receive educational benefits." [33]
C. The Equities Favor the Parent (Burlington/Carter Prong III)
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."[34] In making that equitable determination, a hearing officer may consider many factors, including, inter alia, whether a parent’s unilateral withdrawal of her child from the public school was justified, whether the parent provided the Department with adequate notice of the withdrawal, whether the amount of private-school tuition was reasonable, whether the parent should have availed herself of need-based scholarships or other financial aid from the private school, and whether there was any fraud or collusion in generating (or inflating) the tuition to be charged to the Department, or whether the arrangement with the school was fraudulent or collusive in any other respect. [35]
Here, Parent provided the necessary Ten-Days’ Notice[36] of their concerns with the DOE’s offer of FAPE for the Student for the 2022-2023 school year. Therein, Parent detailed specific concerns, whereby Parent gave the DOE notice of their intention to unilaterally place the Student at the Private School. No evidence was submitted at hearing describing the DOE’s response to the Ten-Day Letter.
By way of relief, Parent seeks reimbursement and direct funding of Private School tuition costs. Direct tuition funding is relief encompassed by the equitable remedial powers inherent in IDEA, and parents may seek direct funding in the instance in which, “due to a lack of financial resources, [parents of a student with a disability] have not made tuition payments but are legally obligated to do so.” Parent testified that she does not have the means to pay the entire tuition but has already paid $17,330.00 of the total tuition at the Private School of $36,936.00.[37] Equity demands that the DOE reimburse Parent for the tuition already paid, and directly fund Student’s remaining Private School tuition.
1. Transportation
Parent averred that DOE did not respond to the request for transportation, and parent unilaterally contracted for the transportation at a cost of $2,200.00. Under the IDEA, transportation and any modifications or accommodations necessary in order to assist a student to benefit from his or her special education, in its definition of related services. [38] New York State Education Law[39] defines special education as "specially designed instruction . . . and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability," and requires school districts to provide disabled students with "suitable transportation to and from special classes or programs." [40]. Specialized transportation must be included on a student's IEP if required to assist the student to benefit from special education.[41] If the provision of FAPE is dependent on the transportation as a related service, then the CSE must ensure that the student receives the necessary transportation at public expense.[42] An IEP "must include specific transportation recommendations to address each of the student's needs, as appropriate."[43] “Other relevant considerations may include the student's age, ability to follow directions, ability to function without special transportation, the distance to be traveled, the nature of the area, and the availability of private or public assistance.” [44]
As DOE did not defend its provision of FAPE, or that Parent’s claims, to include for transportation, were mistaken or unreasonable, transportation costs must be funded by DOE.
I find no issue with the reasonableness of the costs, including tuition and transportation costs, associated with the Private School. Moreover, I find that the weight of the evidence establishes that Parent cooperated with the DOE and its CSE’s efforts to develop an IEP and recommend a program and placement for the 2022-2023 school year. Overall and after considering the record at hearing, I find that the equities support Parent’s claim for tuition reimbursement, and direct funding.
D. Section 504 Claims
Parents asserted a claim under Section 504 of the Rehabilitation Act for the School Year in question but agreed that all the potential claims in the DPC are subsumed in the IDEA. Section 504 requires that school districts provide qualified students with a “free appropriate public education… regardless of the nature or severity of the person’s [disability].”[45] Under Section 504, an appropriate education means “the provision of regular or special education and related aids and services that (i) are designed to meet individual educational needs of handicapped persons as adequately as the needs of nonhandicapped persons are met and (ii) are based upon adherence to [504’s] procedures.” [46]
An individual with a disability includes any person who “(i) has a physical or mental impairment which substantially limits one or more major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having an impairment.”[47] However, only students who have a substantial limitation of a major life activity are entitled to a FAPE.[48] Section 504 and the Americans with Disabilities Act share the same non-exhaustive list of major life activities, which include seeing, hearing, eating, walking, standing, sitting, speaking, learning, reading, concentrating, thinking, writing, and communicating, among others.[49] The student’s parents bear the burden of proof, both in production and persuasion, on any claim under Section 504 of the Rehabilitation Act. [50]
Section 504 requires that recipients of federal funds that operate public educational programs or activities must “establish and implement . . . a system of procedural safeguards that includes...an impartial hearing with opportunity for participation by the [student’s] parents or guardian and representation by counsel, and a review procedure.”[51] Impartial Hearing Officers have authority to hear claims under Section 504 of the Rehabilitation Act if delegated the authority by the Local Education Agency (LEA). The New York City Department of Education delegated to OATH the authority to adjudicate due process complaints under Section 504. [52]
I find that all of Parents’ 504 claims are subsumed within the statutory framework of the IDEA, and that the Parents did not identify any specific regulatory requirement under 504 that is not subsumed under the IDEA and that would merit separate analysis and discussion. Therefore, I do not separately address factual determinations or analyze the 504 claims related thereto.
IV. Orders
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY:
1. ORDERED that, upon presentation of paid receipts or tuition affidavit from Private School, DOE reimburse Parent for tuition already paid to Private School, and directly fund any amounts due, for a total amount not to exceed $36,936.00, within 30 days of the date of this Order.
2. ORDERED that, upon presentation of a valid contract and paid receipts, or affidavit from the privately contracted transportation provider, DOE reimburse Parent for transportation costs already paid to the transportation provider, and directly fund any amounts due, for a total amount not to exceed $2,200.00, within 30 days of the date of this Order.
3. All other claims and requested relief not addressed at the Due Process Hearing are dismissed with prejudice.
DATED: SO ORDERED
6/9/2023
Dr. Oren Varnai, Esq., IHO
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 proceedings 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.
EXHIBITS
PARENT EXHIBITS
A. Request for Impartial Hearing 3/28/2023 3 pages
B. Notice of Unilateral Placement 8/22/2022 2 pages
C. Psychoeducational Evaluation Report 8/5/2022 9 pages
D. Enrollment Contract 8/16/2022 2 pages
E. Class Schedule Undated 2 pages
F. Report Card 2022-2023, Q.3 2 pages
G. Affidavit of Psychologist 6/8/2023 7 pages
H. Affidavit of Parent Attested on the record 6/9/2023 4 pages
DOE’S EXHIBITS
1. None None None
IHO’S EXHIBITS
I. None None None
Footnotes
[1] 20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982].
[2] Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85.
[3] Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005].
[4] Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009].
[5] Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. __, 137 S. Ct. 988, 999 [2017].
[6] R.E., 694 F.3d at 190-91.
[7] M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003].
[8] 20 U.S.C. § 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, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245.
[9] 20 U.S.C. § 1415[f][3][E][i].
[10] Rowley, 458 U.S. at 203.
[11] Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189.
[12] Endrew F., 137 S. Ct. at 1001.
[13] 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.
[14] Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132.
[15] Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008].
[16] Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Endrew F., 137 S. Ct. at 1001.
[17] 20 U.S.C. § 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.
[18] 34 CFR 300.320[a][1]; 8 NYCRR §200.4[d][2][i].
[19] 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR §200.4[d][2][iii].
[20] 34 CFR 300.320[a][4]; 8 NYCRR §200.4[d][2][v].
[21] Endrew F., 137 S. Ct. at 1000.
[22] Endrew F., 137 S. Ct. at 1002.
[23] Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12, 15 (1993); Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 370 (1985).
[24] See Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112, 115 (2d Cir. 2007); Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998).
[25] Gagliardo, 489 F.3d at 112.
[26] Id., quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006).
[27] Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115.
[28] 20 U.S.C. § 1401(29); Educ. Law § 4401(1); 34 CFR 300.39(a)(1); 8 NYCRR 200.1(ww); Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 (2d Cir. 2014).
[29] Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).
[31] Ex. P-D.
[32] Ex. P-C.
[33] Frank G., 459 F.3d at 364.
[34] Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246-47, 129 S. Ct. 2484, 174 L. Ed. 2d 168 (2009).
[35] E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014).
[36] Ex. P-B.
[37] Ex. P-D.
[38] 20 U.S.C. § 1401[26]; see 34 CFR 300.34[a], [c][16].
[39] Educ. Law §§ 4401[1]; 4402[4][a].
[40] State Appeal No. 21-057; Educ. Law § 4401[2]; 8 NYCRR 200.1[ww].
[42] Transportation, 71 Fed. Reg. 46576 [Aug. 14, 2006]; see 8 NYCRR 200.1[ww].
[43] ("Special Transportation for Students with Disabilities," VESID Mem. [Mar. 2005], available at http://www.p12.nysed.gov/specialed/publications/policy/specialtrans.pdf).
[44] State Appeal No. 21-057 citing Donald B. v. Bd. of Sch. Commrs., 117 F.3d 1371, 1375 [11th Cir. 1997]; Malehorn v. Hill City Sch. Dist., 987 F. Supp. 772, 775 [D.S.D. 1997].
[45] 34 C.F.R. § 104.33(a).
[46] 34 C.F.R. § 104.33(b).
[47] 34 C.F.R. §104.3(j)(1).
[48] 29 U.S.C. § 705(20)(B)(i); 42 U.S.C. § 12102(2).
[49] See 28 C.F.R. § 35.108(c)(1)(ii).
[50] See e.g., Mrs. C. v. Wheaton, 916 F.2d 69, 74 (2d Cir. 1990); S.W. by J.W. v. Warren, 528 F. Supp. 2d 282, 290 (S.D.N.Y. 2007).
[51] 34 C.F.R. § 104.36.
[52] NYC Exec. Order No. 20 (June 24, 2022), https://www1.nyc.gov/assets/oath/downloads/pdf/EO-20-final-rehab-Act- 504-delegation-Signed.pdf.