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CASE NUMBER: 598403 - NYC: 247441
FINDINGS OF FACT AND DECISION
Case Number: 247441
Student’s Name: [REDACTED] (“Student”)
Date of Birth: [REDACTED]
School District: [REDACTED]
Hearing Requested by: [REDACTED] (“Parents”)
Request Date/Date Complaint Filed: April 13, 2023
Date(s) of Hearing: October 4, 2023
Actual Record Closed Date: October 18, 2023
Date of Decision: October 25, 2023
Time Sensitive: No
Hearing Officer: Robin Levin, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 4, 2023
For the Student:
[REDACTED]
[REDACTED]
[REDACTED]
For the Department of Education:
[REDACTED]
IHO Observing
[REDACTED]
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 is classified as a student with a Speech or Language Impairment.[2] For the 2022-2023 school year, the Student attended a private school (“Private School”).[3]
On April 13, 2023, the Parents, through their attorney, filed a Due Process Complaint (“DPC”) against the New York City Department of Education (“DOE” or District”)[4] In the DPC, the Parents alleged that the DOE failed to offer the Student a Free Appropriate Public Education (“FAPE”) for the 2022-2023 school year.[5] The Parents alleged that the Committee on Special Education (“CSE”) convened on May 4, 2022 to develop an Individualized Education Program (“IEP”) for the Student.[6] The CSE recommended an Integrated Co-Teaching (“ICT”) classroom with Special Education Teacher Support Services (“SETSS”) and related services including occupational therapy and speech-language therapy.[7] The Parents alleged that the recommendations of the CSE are inappropriate to meet the Student’s needs since the Student was previously in a ICT program during the 2018-2019 school year and made no progress during that time.[8] The Parents argued that based on a neuropsychological evaluation, the Student requires a small, structured special education program in a language-enriched setting that is able to provide him with multi-sensory and tailored instruction.[9]
By way of relief, the Parents seek an award of tuition funding and reimbursement for the Student’s attendance at the Private School for 2022-2023 school year.[10] The Parents argued that the Private School was appropriate for the Student for the 2022-2023 school year.[11] The Parents also argued that the equities support their claim for tuition funding and reimbursement since the Parents fully cooperated with the CSE and properly served a Ten-Day Notice.[12]
As discussed below, I find that the DOE denied the Student a FAPE for the 2022-2023 school year. I find that the Private School was an appropriate placement for the Student. I find that the equities support the Parents’ request for direct tuition funding and reimbursement.
PROCEDURAL HISTORY
On April 17, 2023, I was appointed as the Impartial Hearing Officer (“IHO”). On May 18, 2023, the parties appeared via videoconferencing for a pre-hearing conference (“PHC”). At that time, the DOE Attorney requested additional time to determine whether the case can be recommended for settlement, so on consent of the parties, a Status Conference (“SC”) was scheduled for June 7, 2023.[13] On June 7, 2023, the parties made a joint request to extend the compliance date for settlement purposes, which I granted.[14] Additional SCs were held on July 5, 2023, July 26, 2023, and August 23, 2023. The parties made joint requests to extend the compliance date on July 26, 2023 and August 23, 2023, which I granted.[15] The case was scheduled for a Due Process Hearing (“DPH” or “hearing”).[16]
A virtual DPH was held on October 4, 2023. It was a closed hearing.[17] Parent 1 was present and represented by Parents’ Attorney. The DOE Attorney was present. The DOE Attorney sought to admit nine exhibits into the hearing record without objection, which I admitted.[18] The Parents’ Attorney sought to admit twelve exhibits into the hearing record without objection, which I admitted.[19] The DOE Attorney gave an opening statement and did not call any witnesses at the hearing.[20] The Parents’ Attorney gave an opening statement and called Parent 1 and the CSE Coordinator to testify via affidavit.[21] The DOE Attorney cross-examined both witnesses.[22] The Parents rested, the parties gave closing statements.[23] The record was closed on October 18, 2023 after receipt and review of the hearing transcript.
The DOE took the position that the Parents did not meet their burden at the hearing to show that the unilateral placement at the Private School was appropriate for the Student and the equities do not favor the Parents.[24] 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 2022-2023 school year.[25] In addition, the Parents argued that the entire hearing record demonstrated that the unilateral placement at the Private School was appropriate for the Student for the 2022-2023 school year since the Private School provided the small special education program for students with languagebased learning disabilities the Student needs.[26] Lastly, the Parents argued that the evidence shows that the Parents fully cooperated with the DOE, participated in the IEP meeting, visited the Public School, and provided a timely ten-day notice.[27]
FINDINGS OF FACT
After a full review of the hearing record, I make the following findings of fact and determinations.
The Student is currently [REDACTED] years old and is classified as a student with a Speech or Language Impairment by the DOE’s CSE.[28] The Student is described as a friendly, sensitive student who “requires significant amount of individualized support to achieve learning success.”[29] The Student has attended the Private School since the 2019-2020 school year.[30] Between May and October of 2021, the Student underwent an updated neuropsychological evaluation conducted by the Neuropsychologist.[31] According to the neuropsychological evaluation report, the Student was found to continue to meet the criteria for Specific Learning Disorder in Reading- moderate, Written Expression- Severe, Math- mild, and Language Disorder.[32] In addition, the Neuropsychologist found that the Student also met the criteria for Auditory Processing Disorder.[33] The Neuropsychologist recommended that the Student attend a “small, calm, self-contained special education setting for students with language-based learning disabilities to address his language disorder, learning disabilities and executive functioning deficits.”[34] In addition, the Neuropsychologist recommended that the Student “receive individualized attention for his learning needs and a peer group at his academic level with no behavior struggles, as he is very easily distracted.”[35] Related services consisting of speech-language therapy and occupational therapy were also recommended.[36]
The DOE convened a meeting of the CSE on May 4, 2022 to develop an IEP for the Student for the 2022-2023 school year.[37] The CSE recommended an ICT classroom with SETSS in math twice per week in a group of three students and related services of individual speech-language therapy once per week for 30 minutes, group speech-language therapy twice per week for 30 minutes, and group occupational therapy twice per week for 30 minutes.[38] Parent 1 participated in the IEP meeting and disagreed with the recommendation.[39] Parent 1 expressed that “an ICT class is much too large given [the Student’s] learning needs and auditory processing deficits.”[40] At the IEP meeting, the representatives from the DOE believed the Student needed a medication evaluation and argued that the Student’s “attention appears to be the most significant impact on his educational performance.”[41] Parent 1 disagreed and explained to the CSE that the Student was doing well at the Private School without medication and needed a program and placement that would provide him with individualized instruction focused on addressing his language-based disabilities.[42]
On May 18, 2022, the DOE sent Prior Written Notice (“PWN”) to the Parents and a School Location Letter recommending the Public School.[43] Parent 1 visited the Public School and during the visit, she became concerned that the classroom would be too large for the Student and the placement would not be able to address his language-based learning disabilities.[44] Thereafter, the Parents decided to continue the Student’s enrollment at the Private School, and on August 23, 2022, the Parents, wrote a letter (“Ten-Day Notice”) to the CSE expressing their concerns regarding the program and placement.[45] The Ten-Day Notice also informed the DOE of the Parents’ intent to continue the Student’s enrollment at the Private School for the 2022-2023 school year.[46]
On January 28, 2022, Parent 1 signed a Re-Enrollment Contract for the 2022-2023 school year.[47] The Student attended the Private School regularly from September 8, 2022 to June 13, 2022 and was only absent three days.[48] The total cost of the Student’s tuition for the 2022-2023 school year was $76,101.[49] The Parents paid a tuition deposit in the amount of $3000 on February 14, 2022.[50] The remaining balance owed to the Private School is $73,101.[51] According to the ReEnrollment Contract, if the Parents decide that the Student will be attending a public school and the Private School is notified by September 1, 2022, the Parents would be released from the contract and any tuition payments would be refunded.[52] In addition, if the Parents are denied tuition funding due to a final decision, the Parents remain liable to pay the Private School the remaining balance of the tuition within 45 days of such final decision.[53] The Parents’ tax returns show an adjusted gross income of $122,920 for 2021.[54]
The Private School “is a K-12 college preparatory program dedicated to the success of students with learning disabilities.”[55] The majority of students who attend the Private School have language-based learning disabilities similar to the Student.[56] All of the head teachers who work at the Private School have minimum a master’s degree in special education, and all of the associate teachers have bachelor’s degrees.[57] The Private School provides training and professional development for all staff members, including training in Orton-Gillingham, Teaching Basic Writing Skills, behavior management, Singapore Math, and teaching students with learning disabilities.[58] The Private School places students in cohesive groups based on their needs, and for reading and math, the students are placed into smaller groups to target each student’s individual deficits. [59]
The CSE Coordinator at the Private testified credibly about the Private School’s programs and the qualifications of the Student’s teachers.[60] In addition, the Student’s Progress Reports detail the instruction provided to the Student and the progress he made throughout the school year.[61] For the 2022-2023 school year, the Student was placed in a class with 11 students and two teachers.[62] The head teacher has a master’s degree in inclusive childhood education and special education and is certified to teach students with disabilities in New York.[63] The Student’s peers in his classroom shared similar strengths and needs, including attentional challenges and expressive and receptive language deficits.[64] The Student’s class schedule consisted of reading, math, physical education, science, art, music, current events, social studies, writing, health, lab, clubs, and reflection circle.[65]
For reading, the Student was in a group of 5 with one teacher, who holds a master’s degree in inclusive education and is a licensed special education teacher in New York.[66] For math, the Student was in a group of 4 with one teacher who holds a master’s degree in childhood general education and childhood special education.[67] The learning profiles of the Student’s peers in these smaller groups were similar to the Student’s learning profile, and the small group instruction for reading and math allowed for 1:1 support and attention from the teachers with the use of repetition and a slower pace to benefit the Student.[68]
In the Student’s reading class, the teachers at the Private School used the Scientific Spelling Program to help the Student build his reading comprehension skills.[69] The Scientific Spelling Program “is a structured, rule-based program which teaches students to spell words by identifying consistent spelling patterns and rules, and then using them to analyze and categorize familiar and unfamiliar words. This instructional model uses multi-sensory lessons and activities as well as independent practice.”[70] As a result of the direct instruction and group discussions, the Student strengthened his reading fluency and comprehension skills and successfully read three novels during the school year.[71] The Student demonstrated progress in his ability to respond to comprehension questions on topics such as character traits, character’s feelings, cause and effect, vocabulary, sequencing events, summarizing stories, and making text-to-self and text-to-world connections.[72] By the end of the 2022-2023 school year, the Student was decoding at an end of 5th grade level, encoding at a 4th grade level, and his reading comprehension was at an end of 5th grade level.[73]
In math, the Student was able to work 1:1 with the teacher using a multi-sensory approach to problem-solving which helped the Student with mathematical concepts.[74] The teacher used the Math in Focus with Singapore Math curriculum and tailored instruction to a slower pace with a lot of repetition and check-ins to support the Student’s needs and help him improve his mental math skills and fact fluency.[75] By working with the teacher 1:1, the Student made progress with understanding multiplication, division, addition and subtraction with regrouping to the 10,000s, and word problems.[76]
The Student also received speech-language therapy and occupational therapy at the Private School.[77] The Student received speech-language therapy once per week for 45-minute sessions in a group of 3 students, and he also received “push-in” speech-language therapy once weekly during social studies.[78] During speech-language therapy, the Student worked on improving his processing speed and working memory “with support of verbal modeling and cueing of the ACT strategy (access the task, consider prior knowledge, turn on focus).”[79] The Student successfully organized and planned a multi-step writing assignment.[80]
Moreover, the Student received occupational therapy through a Motor Lab once per week for 30 minutes in a small group.[81] “The motor lab was based on the Ready Bodies, Learning Minds program which consists of sensory integration and motor control activities that are task oriented. This program helped [the Student] develop the skills necessary for learning readiness and mastery of the environment. [The Student] worked on improving executive functioning skills such as time awareness, working memory, flexibility and inhibition control,” and he also improved his handwriting and visual perception skills.[82] Overall, the Student’s access to individualized support throughout the school year allowed him to progress academically, socially, and emotionally.[83]
CONCLUSIONS OF LAW AND ANALYSIS
In this case, the Parents request that the DOE directly fund the cost of the Student’s tuition for the Private School for the 2022-2023 school year and reimburse them for the tuition deposit they paid to the Private School. 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.[84] 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.”[85]
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 DOE denied the student a FAPE; (2) the private placement is appropriate; and (3) the equities favor an order of tuition.[86] 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 on the appropriateness of such placement.[87]
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.[88] 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.[89] 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.[90] Under the IDEA, students with disabilities are entitled to be educated in the least restrictive environment that meets their unique needs.[91] 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.”[92]
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.”[93] 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.’”[94] A school district must be able to “offer a cogent and responsive explanation for their decisions” in creating the IEP.[95] 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.[96] The IEP should: (1) accurately reflect the results of evaluations to identify the student’s needs,[97] (2) provide for the utilization of sufficient special education programs or services,[98] and then (3) the IEP must be properly and timely implemented.[99] Failure to implement substantial or significant provisions of an IEP is a denial of a FAPE.[100]
Here, the Parents alleged that the DOE denied the Student a FAPE for the 2022-2023 school year. Specifically, the Parents alleged both procedural and substantive violations including the following: (1) the DOE did not conduct sufficient evaluations of the Student prior to the May 4, 2022 IEP meeting, (2) the IEP team did not include a general education teacher when the CSE was recommending a general education program, (3) the DOE failed to consider the full continuum of services available for the Student that would sufficiently provide the Student with the level of individualized instruction and support he needs in order to make progress, (4) the annual goals in the IEP are not attainable for the Student in an ICT classroom, (5) the DOE failed to offer a program that provides sufficient supports and strategies to address the Student’s language-based learning challenges and (6) the DOE failed to meaningfully consider the Parents’ concerns.[101]
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 call any witnesses at the hearing, and in her opening statement, the DOE Attorney asserted that the DOE was resting on the documentary evidence admitted into the hearing record.[102] While the DOE Attorney submitted nine exhibits into the hearing record including the Student’s May 4, 2022 IEP, IEP Meeting Minutes, Prior Written Notice (“PWN”) dated May 18, 2022, the School Location Letter dated May 18, 2022, and the Student’s neuropsychological evaluation report dated November 1, 2021, a review of same offers no explanation as to how the CSE made its recommendation, how the IEP appropriately describes the Student, or whether the IEP is meaningfully calculated to confer educational benefit. I find that the DOE failed to “offer a cogent and responsive explanation for their decisions” in creating the May 4, 2022 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.”[103]
I find that the documentary evidence admitted into the hearing record by the DOE could not rebut the Parents’ allegations. Instead, the documentary evidence supports a finding that the DOE failed to provide the Student a FAPE for the 2022-2023 school year. The IEP Meeting Minutes specifically state that the Student’s “attention appears to be the most significant impact his educational performance,” and the “CSE asked about a medication evaluation.”[104] The IEP Meeting Minutes corroborate Parent 1’s testimony that the CSE was more concerned about the Student’s attentional issues and whether the Student should be taking medication rather than focusing on how best to address the Student’s language-based learning disabilities.[105] According to the neuropsychological evaluation report, which was offered into evidence by the DOE, the Student was found to continue to meet the criteria for Specific Learning Disorder in Readingmoderate, Written Expression- Severe, Math- mild, and Language Disorder.[106] In addition, the Neuropsychologist found that the Student also met the criteria for Auditory Processing Disorder.[107] The Neuropsychologist recommended that the Student attend a “small, calm, self-contained special education setting for students with language-based learning disabilities to address his language disorder, learning disabilities and executive functioning deficits.”[108] The DOE failed to show at the hearing how the May 4, 2022 IEP consisting of an ICT program with SETSS in math and related services would adequately address the Student’s language-based learning disabilities. I find that the May 4, 2022 IEP was inappropriate for the Student and would not confer educational benefit, and therefore, I find that the DOE failed to provide the Student with a FAPE for the 2022-2023 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.”[109] Parents need not show that the unilateral placement is perfect or that it meets all state educational standards.[110] 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.”[111] 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.”[112] 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.’”[113]
A unilateral placement is appropriate if it provides instruction specially designed to meet the unique needs of a student.[114] 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.[115] A private school placement must be “proper under the Act.”[116] This means that the Private School must offer an educational program which meets the Student’s special education needs.[117] 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 in light of his unique circumstances.
Here, the DOE Attorney argued that the Parents’ failed to meet their burden in showing that the Private School was appropriate for the Student because there are concerns about the delivery of the Student’s related services at the Private School and the teachers at the Private School, specifically the Student’s math teacher is not a New York State licensed teacher.[118] While the DOE Attorney agreed that Private Schools are not required to have state licensing for their teachers, the DOE Attorney argued that since the Student’s “primary area of deficit is math,” the Student should “have access to an instructor with uniform qualifications.”[119] I disagree with the DOE’s arguments. I find that the Parents’ met their burden in showing that the Private School was appropriate for the Student for the 2022-2023 school year.
Primarily, the Private School was appropriate because it provided the Student with individualized instruction in small classes 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.’”[120] The hearing record shows that the Private School places students in cohesive groups based on their needs, and for reading and math, the students are placed into smaller groups to target each student’s individual deficits using tailored instruction to address languagebased disabilities.[121] The learning profiles of the Student’s peers in these smaller groups were similar to the Student’s learning profile, and the small group instruction for reading and math allowed for 1:1 support and attention from the teachers with the use of repetition and a slower pace to benefit the Student.[122] The Student’s peers in his classroom shared similar strengths and needs, including attentional challenges and expressive and receptive language deficits.[123]
Additionally, the Private School was appropriate because it provided the Student with instruction from teachers who are trained in Orton-Gillingham, Teaching Basic Writing Skills, behavior management, Singapore Math, and teaching students with learning disabilities.[124] 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 education, training, and specialization necessary to teach the Student based on his needs.[125] All of the head teachers who work at the Private School have minimum a master’s degree in special education, and all of the associate teachers have bachelor’s degrees.[126] The Student’s head teacher has a master’s degree in inclusive childhood education and special education and is certified to teach students with disabilities in New York.[127] In addition, the Student’s reading teacher holds a master’s degree in inclusive education and is a licensed special education teacher in New York, and the Student’s math teacher holds a master’s degree in childhood general education and childhood special education.[128] Therefore, I find that the teachers have sufficient education and training to teach the Student based on his unique needs and learning profile.
Moreover, the Private School was appropriate because the Student made progress at the Private School. Significant educational progress can be a factor weighing in favor of the appropriateness of the parent’s unilateral placement.[129] 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.[130] In this case, the hearing record shows that the Student made progress during the 2022-2023 school year. For instance, in the Student’s reading class, the teachers at the Private School used the Scientific Spelling Program to help the Student build his reading comprehension skills.[131] As a result of the direct instruction and group discussions, the Student strengthened his reading fluency and comprehension skills and successfully read three novels during the school year.[132] The Student demonstrated progress in his ability to respond to comprehension questions, and by the end of the 2022-2023 school year, the Student was decoding at an end of 5th grade level, encoding at a 4th grade level, and his reading comprehension was at an end of 5th grade level.[133] The Student also made progress in math. The teacher used the Math in Focus with Singapore Math curriculum and tailored instruction to a slower pace with a lot of repetition and check-ins to support the Student’s needs and help him improve his mental math skills and fact fluency.[134] By working with the teacher 1:1, the Student made progress with understanding multiplication, division, addition and subtraction with regrouping to the 10,000s, and word problems.[135]
Furthermore, the Private School was appropriate for the Student because it provided the Student with appropriate related services including speech-language therapy and occupational therapy, and the Student has demonstrated progress in his related services.[136] The Student received speech-language therapy once per week for 45-minute sessions in a group of 3 students, and he also received “push-in” speech-language therapy once weekly during social studies.[137] During speech-language therapy, the Student worked on improving his processing speed and working memory “with support of verbal modeling and cueing of the ACT strategy (access the task, consider prior knowledge, turn on focus).”[138] The Student successfully organized and planned a multi-step writing assignment.[139] In addition, the Student received occupational therapy once per week for 30 minutes in a small group, which helped the Student develop necessary skills for learning readiness and mastery of the environment.[140] In addition, the Student improved “executive functioning skills such as time awareness, working memory, flexibility and inhibition control,” and he also improved his handwriting and visual perception skills.[141] Overall, I find that 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.”[142] 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 the third and last prong of the Burlington/Carter test, courts must consider “equitable factors” relevant to an order of tuition.[143] “[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.”[144] 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."[145] In making that equitable determination, a hearing officer may consider many factors, including, but not limited to, whether a parent’s unilateral withdrawal of her child from the public school was justified, whether the parent provided the DOE with adequate notice of the withdrawal, whether the amount of private school tuition was reasonable, and whether there was any fraud or collusion in generating or inflating the tuition to be charged to the DOE, or whether the arrangement with the school was fraudulent or collusive in any other respect.[146] In addition, equitable considerations include the parents’ participation in IEP meetings and visits to the proposed school placements.[147]
Here, the Parents fully cooperated with the CSE, and Parent 1 fully participated in the IEP process. The Parents’ cooperation and participation weighs in favor of the Parent’s request for a tuition award under Prong 3 of the Burlington/Carter standard.[148] Here, Parent 1 participated in the May 4, 2022 IEP meeting.[149] Parent 1 shared her concerns with the IEP team.[150] Therefore, the Parents’ cooperation with the IEP process weighs in their favor when considering the equities.
Next, Parent 1 attempted to obtain information about the Public School when she toured the school. A parent’s attempt to investigate the district’s proposed placement is another factor that weighs in favor of an award of tuition funding under Prong 3.[151] In this case, Parent 1 toured the Public School and was concerned that the ICT classroom would be too large for the Student and the placement would not be able to address his language-based learning disabilities.[152] After the tour of the Public School concluded, the Parents had concerns about both the IEP and the proposed placement. Specifically, the Parents were concerned that neither the IEP nor the placement offered the Student individualized support the Student needs.[153] Overall, I find that the Parents engaged in the school selection process and that this weighs in their favor under Prong 3.
Furthermore, on August 23, 2022, the Parents provided the necessary Ten-Day Notice of their concerns with the DOE’s offer of FAPE for the Student for the 2022-2023 school year and their intent to unilaterally place the Student in the Private School.[154] In the letter, the Parents listed their concerns regarding the Student’s IEP and the Public School.[155] The DOE did not submit evidence at the hearing describing its response to the Ten-Day Notice, if any. However, the DOE Attorney argued in her closing statement that the equities do not favor the Parents because the Parents signed the Re-Enrollment Contract in January of 2022, several months prior to the commencement of the 2022-2023 school year.[156] While the evidence shows the Re-Enrollment Contract was signed on January 28, 2022, the contract contains a provision that allows the Parents to be released from its terms and refunded if the Parents choose a public school placement for the Student and notify the Private School by September 1, 2022.[157] Therefore, I find that it was reasonable for the Parents to execute the Re-Enrollment Contract to secure the Student’s place in the Private School for the 2022-2023 school year, and I do not find that doing so warrants any deduction.
Lastly, “[c]ourts 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.”[158] As discussed previously, Parent 1 signed a Re-Enrollment Contract with the Private School for the 2022-2023 school year.[159] According to the contract, the cost of the tuition for the 2022-2023 school year is $76,101.[160] The Parents paid a tuition deposit in the amount of $3000 on February 14, 2022.[161] The remaining balance owed to the Private School is $73,101.[162] I find no issue with the reasonableness of the cost of tuition for the Private School. The Student’s attendance record for the 2022-2023 school year shows that the Student attended the Private School regularly with only three absences.[163] Overall and after considering the entire hearing record, I find that the equities support the Parents’ claim for direct tuition funding and reimbursement, and I find that the DOE’s remaining arguments are without merit.
By way of relief, the Parents seek direct tuition funding for the 2022-2023 school year. Direct tuition funding is relief encompassed by the equitable remedial powers inherent in IDEA.[164] Tuition at the Private School for the 2022-2023 school year was $76,101.[165] Pursuant to the contract, the Parents are liable for tuition for the entire school year, including if the Parents are denied tuition funding through a final decision.[166] I find that the Parents are entitled to the requested form of payment, and are also entitled to be reimbursed for the $3000 tuition deposit they paid to the Private School. Under the law, “once the Burlington prerequisites are met, and a parent shows that his or her financial circumstances eliminate the opportunity for unilateral placement in the non-approved school, the public school must pay the cost of the private placement immediately.”[167] Considering the Parents’ 2021 tax returns which shows an adjusted gross income of $122,920, I find that the Parents cannot afford to pay the tuition and seek reimbursement.[168] Equity demands that the DOE fund the Student’s Private School tuition directly in this instance.
As I have found that the Burlington/Carter test has been met, that there is no evidence that the tuition amount sought is unreasonable, and that there is evidence that the Parents are unable to pay for the Private School, I am granting the request for direct tuition payment to the Private School for the remaining balance of the tuition, $73,101, for the 2022-2023 school year. I am also granting the request for the Parents to be reimbursed for the $3000 tuition deposit that they paid to the Private School.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the Parents’ claim for direct tuition funding and reimbursement for the Student’s unilateral placement at the Private School is GRANTED for the 2022-2023 school year. The New York City Department of Education shall directly pay the Private School in the amount of $73,101.00 within 35 days of the date of this Order. The New York City Department of Education shall also reimburse the Parents in the amount of $3,000.00 within 35 days of the date of this Order.
SO ORDERED.
_______________________
DATED: October 25, 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 – DOCUMENTATION ENTERED INTO THE RECORD
PARENT EXHIBITS
A. Impartial Hearing Request — 4/13/2023 (5 pages)
B. Ten Day Notice Letter with Receipt — 8/23/2022 (3 pages)
C. [REDACTED] School Enrollment Contract — 1/28/2022 (7 pages)
D. 2022-2023 Mid-Year Report — September 2022 – January 2023 (16 pages)
E. 2022-2023 Class Schedule — 2022-2023 (1 page)
F. [REDACTED] Program Description — Undated (2 pages)
G. Attendance Report — 2022-2023 (1 page)
H. 2022-2023 Year-End Report — September 2022-June 2023 (17 pages)
I. Tuition Affidavit — 5/26/2023 (1 page)
J. Parents’ 2021 Tax Documents — 2/12/2022 (2 pages)
K. Witness Affidavit of [REDACTED] — Undated (3 pages)
L. Witness Affidavit of [REDACTED] — 9/26/2023 (7 pages)
DOE EXHIBITS
1. May 2022 Individualized Education Program (IEP) — 05/04/2022 (30 pages)
2. IEP Meeting Attendance Page — 05/04/2022 (1 page)
3. IEP Meeting Minutes — 05/04/2022 (6 pages)
4. Prior Written Notice — 05/18/2022 (4 pages)
5. School Location Letter — 05/18/2022 (3 pages)
6. Social History Update — Undated (2 pages)
7. Progress Report — 2021-2022 (17 pages)
8. Neuropsychological Evaluation — 11/01/2021 (18 pages)
9. Due Process Complaint — 04/13/2023 (5 pages)
IHO EXHIBITS
None
Footnotes
[1] Exhibits will be referred to as “Ex.” followed by lettered designations for Parents’ Exhibits and numbered designations for DOE’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 of the Pre-Hearing Conference, Status Conferences, and the Due Process Hearing will be referred to as “PHC Tr.,” “SC Tr.,” or “DPH Tr.” followed by the page number(s) within the transcript and dates as needed.
[2] Ex. 1-1. The DPC alleged that the Student is classified as a student with a Learning Disability. However, the Student’s IEP dated May 4, 2022 indicates that the Student is classified as a student with a Speech or Language Impairment, and there is no evidence in the hearing record that the Student’s classification has subsequently changed.
[3] Ex. A-1.
[4] Ex. A. In the DPC, the Parent also requests payment of attorneys’ fees and other costs associated with this proceeding. However, since I do not have authority to award attorneys’ fees, this requested relief will not be discussed herein. In addition, the Parents’ claim for transportation was withdrawn at the hearing.
[5] Ex. A-3-4.
[6] Ex. A-2.
[7] Id.
[8] Id.
[9] Id.
[10] Ex. A-3.
[11] Ex. A-3-4.
[12] Id.
[13] PHC Tr. 5-10.
[14] SC 6/7/2023 Tr. 4-7; See Order of Extension 1 dated 6/7/2023.
[15] See Order of Extension 2 dated 7/26/2023 and Order of Extension 3 dated 8/23/2023.
[16] The hearing was originally scheduled for September 19, 2023, but the Parents’ Attorney requested an adjournment and an extension of the compliance date due to witness availability. On consent of the DOE, I adjourned the hearing to October 4, 2023 (See Order of Extension 4).
[17] The Parties consented to the observation of the hearing by an Impartial Hearing Officer for training purposes only.
[18] DPH Tr. 34. A detailed list of the admitted exhibits is attached to this decision as Appendix A, “Exhibits Entered Into the Record.”
[19] DPH Tr. 36.
[20] DPH Tr. 37, 41.
[21] Ex. K; Ex. L. Parent 1’s affidavit was unsigned so Parent 1 affirmed her testimony under oath on the record.
[22] DPH Tr. 44-56.
[23] DPH Tr. 61-69.
[24] DPH Tr. 62-64.
[25] DPH Tr. 65-69.
[26] Id.
[27] Id.
[28] Ex. 1-1.
[29] Ex. L-3.
[30] Ex. K-1; Ex. L-3.
[31] Ex. 8. The evaluation was conducted on May 27, June 29, September 30, and October 20, 2021. The report is dated November 1, 2021.
[32] Ex. 8-13.
[33] Id.
[34] Id.
[35] Id.
[36] Id.
[37] Ex. 1; Ex. 2; Ex. 3.
[38] Ex. 1-23.
[39] Ex. K-2.
[40] Id; Ex. 3-6.
[41] Ex. 3-4.
[42] Ex. K-2; Ex. 3-6.
[43] Ex. 4; Ex. 5.
[44] Ex. K-2.
[45] Ex. B.
[46] Id.
[47] Ex. C.
[48] Ex. G-1.
[49] Ex. C-1.
[50] Ex. I-1.
[51] Id.
[52] Ex. C-3.
[53] Ex. C-7.
[54] Ex. J.
[55] Ex. F-1.
[56] Ex. L-2.
[57] Id.
[58] Id.
[59] Id.
[60] Ex. L; DPH Tr. 44-52.
[61] Ex. D; Ex. H.
[62] Ex. L-3.
[63] Ex. L-3-4.
[64] Ex. L-4.
[65] Ex. E-1.
[66] Ex. L-4.
[67] Id.
[68] Id.
[69] Ex. L-5; H-5.
[70] Id.
[71] Id.
[72] Id.
[73] Ex. H-6.
[74] Ex. L-4.
[75] Id; Ex. H-7.
[76] Ex. L-4.
[77] Ex. L-5-6.
[78] Ex. L-5; Ex. H-9.
[79] Ex. L-6; Ex. H-9.
[80] Id.
[81] Ex. L-7.
[82] Id.
[83] Id.
[84] 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)).
[85] 20 U.S.C. § 1415(b)(6)(A).
[86] See 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).
[87] NY Educ. Law § 4404(1)(c)).
[88] 20 U.S.C. § 1412 (a)(1)(A); Education Law §§ 4402(2)(a), (b)(2).
[89] 34 C.F.R. §300.13.
[90] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
[91] Oberti v. Board of Educ., 995 F.2d 1204 (3rd Cir. 1993).
[92] 20 U.S.C. §1415 (f)(3)(E)(ii); 34 C.F.R. §300.513(a)(2).
[93] Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017).
[94] Cerra, 427 F.3d at 195, quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998).
[95] Endrew F.,137 S.Ct. 988, 999.
[96] 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).
[97] 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).
[98] 34 C.F.R. § 300.320(a)(4); 8 N.Y.C.R.R. 200.4(d)(2)(v).
[99] See 8 N.Y.C.R.R. 200.4(e)(7); Application of a Child with a Disability, Appeal No. 08-087.
[100] 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).
[101] Ex. A.
[102] DPH Tr. 37, 41.
[103] Endrew F., 137 S.Ct. at 1002.
[104] Ex. 3-4.
[105] Ex. K-2.
[106] Ex. 8-13.
[107] Id.
[108] Id.
[109] 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).
[110] 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).
[111] Frank G., 459 F.3d 356, 364; Gagliardo, 489 F.3d 105, 112.
[112] Gagliardo, 489 F.3d at 112.
[113] Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d 356, 364.
[114] 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).
[115] Frank G., 459 F.3d at 364; See Gagliardo, 489 F.3d at 112.
[116] Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370.
[117] Gagliardo, 489 F.3d 105, 112,115; Walczak142 F.3d 119.
[118] DPH Tr. 62-64.
[119] DPH Tr. 63-64.
[120] Frank G., 459 F.3d at 365 (citing 20 U.S.C. § 1401(29)).
[121] Ex. L-2.
[122] Ex. L-4.
[123] Id.
[124] Ex. L-2.
[125] Frank G., 459 F.3d at 364.
[126] Ex. L-2.
[127] Ex. L-3-4.
[128] Ex. L-4.
[129] Frank G., 459 F.3d at 365 (citing Knable, 238 F.3d at 768).
[130] Weaver v. Millbrook Cent. Sch. Dist., 812 F. Supp. 2d 514, 523 (S.D.N.Y. 2011).
[131] Ex. L-5; H-5.
[132] Id.
[133] Ex. H-6.
[134] Ex. H-7.
[135] Ex. L-4.
[136] Ex. L-5-6; Ex. H-9-11.
[137] Ex. L-5-6; Ex. H-9.
[138] Id.
[139] Id.
[140] Ex. L-7.
[141] Id.
[142] Frank G., 459 F.3d at 364.
[143] Gagliardo, 489 F.3d at 112.
[144] Bettinger v. New York City Bd. Of Educ., 2007 WL 4208560, at *6 (S.D.N.Y. Nov. 20, 2007).
[145] Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246-47, 129 S. Ct. 2484, 174 L. Ed. 2d 168 (2009).
[146] E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014).
[147] D.A. v. New York City Dep’t of Educ., 769 F. Supp. 2d 403, 419-20 (S.D.N.Y. 2011).
[148] M.H. v. N.Y.C. Dep’t of Educ., 685 F.3d 217, 254 (2d Cir. 2012).
[149] Ex. 1; Ex. 2; Ex. 3; Ex. K-2.
[150] Id.
[151] C.F. ex rel. R.F. v. N.Y.C. Dep’t of Educ., 746 F.3d 68, 82 (2d Cir. 2014).
[152] Ex. K-2.
[153] Id.
[154] 34 C.F.R. § 300.148(d)(1)(ii); Ex. B.
[155] Ex. B.
[156] DPH Tr. 64.
[157] Ex. C-3.
[158] Florence Cnty. Sch. Dist. Four v. Carter, 510 U.S. 7, 16, 114 S. Ct. 361 (1993); J.S. v. Scarsdale Union Free Sch. Dist., 826 F.Supp.2d 635, 671 (S.D.N.Y. 2011).
[159] Ex. C.
[160] Ex. C-1.
[161] Ex. I-1.
[162] Id.
[163] Ex. G-1.
[164] See e.g. Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 406 (S.D.N.Y. 2011) (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”).
[165] Ex. C.
[166] Id.
[167] Connors v. Mills, 34 F.Supp.2d 795, 799, 805-06 (N.D.N.Y. 1998); See Mr. & Mrs. A. v. New York City Dep’t. of Educ., 769 F. Supp. 2d at 427 (Stating that where the Burlington factors are met, the court may award retroactive direct payment of private school tuition.)
[168] Ex. J.