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CASE NUMBER: 598432 - NYC: 247468
FINDINGS OF FACT AND DECISION
Case Number: 247468
Student’s Name: REDACTED (“Student”)
Date of Birth: REDACTED
School District: REDACTED
Hearing Requested by: REDACTED (“Parent”)
Request Date/Date Complaint Filed: April 14, 2023
Date(s) of Hearing: August 8, 2023
Actual Record Closed Date: October 1, 2023
Date of Decision: October 1, 2023
Date of Distribution if Different than Decision Date: October 1, 2023
Hearing Officer: Marcel P. Denis, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 8, 2023
For the Student:
REDACTED, Attorney
For the Department of Education:
Unrepresented, District Representative
INTRODUCTION AND PROCEDURAL HISTORY
On April 14, 2023, the parents (the “Parent”) of REDACTED (the “Student”) filed a due process complaint under the Individuals with Disabilities Education Act (the “IDEA”) [20 U.S.C. section 1415(f)] and Section 4404(1) of the New York State Education Law against the New York City Department of Education (the “DOE”) under case number 247468. I was appointed as impartial hearing officer (“IHO”) in that proceeding on January 27, 2023. On August 8, 2023. A hearing was held, and the parents moved for a FOFD awarding tuition reimbursement or prospective funding. The DOE did not appear nor communicate the reason it failed to appear. The compliance date for issuing a decision in this proceeding has been extended.
A hearing was held on August 8, 2023. It was a closed hearing, and Parents were represented by attorney REDACTED. The DOE failed to appear at the hearings (Tr. 23). The Parents now seek tuition reimbursement for the cost of the 2021/2022 REDACTED School placement based on their testamentary and documentary submissions. The Parents agreed to conduct an inquest regarding their damages and the relief sought. Parents entered into evidence exhibits: P-Ex. A through Q. The DOE submitted no evidence or testimony.
JURISDICTION
The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.
BACKGROUND AND POSITIONS OF THE PARTIES
REDACTED is a REDACTED-year-old student who is “diagnosed with Down Syndrome has a REDACTED” (P-Ex. A). The student’s classification and eligibility for special education supports and services are not in dispute. The Parent unilaterally placed the Student in the REDACTED SCHOOL for the 2021/2022 school year. The Parent now seeks tuition reimbursement for the cost of the 2021/2022 REDACTED SCHOOL placement. The Parents maintain that the DOE failed to offer the student an appropriate program and placement for the 2021/2022 year, and thus failed to offer the student a free appropriate public education (“FAPE”). The Parents further maintain that the REDACTED SCHOOL placement is appropriate and that equitable factors support the tuition reimbursement claim (P-Exs. A, O).
On August 16, 2021, the Parents sent a letter to the CSE indicating that the Parents would unilaterally place the Student at the REDACTED SCHOOL and seek tuition reimbursement for the cost of that placement (P-Ex. B). The Parents maintain that the student is eligible for classification as a student with a disability, that the DOE failed to provide the Student with a FAPE for the 2021/2022 school year, that the REDACTED SCHOOL placement was appropriate, and that equitable factors support the tuition reimbursement claim. The Parents request an order directing that the DOE be directed to reimburse them for the entire cost of the REDACTED SCHOOL 2021/2022 tuition.
The Parents submitted a documentary evidence package and witness affidavit testimony. As noted above, the DOE defaulted in appearance in this case. It did not disclose any documentary evidence prior to the hearing (Tr. 23). In light of the DOE’s default, the Parents’ request for relief was unopposed.
ISSUES
Whether a denial of FAPE occurs where the DOE failed to convene and generate an individualized educational program for the student for the 2021/2022 school year?
FINDINGS OF FACT
The student is REDACTED years old and attends REDACTED SCHOOL, a parentally placed private school located in REDACTED.[1] The student is diagnosed with “Down Syndrome” Therefore, the student’s eligibility for Special education and related services under the IDEA and Article 89 of the New York Education Law and Part 200 of Title 8 of the Regulations of the Commissioner of Education is not in question.2 The DOE failed to convene an IEP meeting to generate an IEP and recommend an appropriate school placement for the 2021/2022 (P-Ex. A). The CSE convened an IEP meeting on November 30, 2020 and the SBST/CSE “recommended [ ] a bilingual Yiddish Class 12:1+1 in a NYC DOE Non Specialized School (District REDACTED) (specifically P.S. REDACTED) for math (language of instruction: Yiddish), and Sciences (language of instruction: Yiddish), with Adapted Physical Education and related services” (P-Ex. A). The CSE did not evaluate the Student prior to generating the program. In fact, the DOE failed to perform the triennial evaluation despite demands made by the parents (P-Ex. A). The parents contested the IEP and maintained that the recommendation is wholly inadequate to meet the student’s educational needs for the 2021-2022 school year (P-Exs A, O). On August 16, 2021, the parents notified the district of their intent to enroll the student at REDACTED. The unilateral placement did not however, take place until after the DOE failed to intervene and address the student and parents’ concerns raised about the student’s needs despite receipt of the Parents’ Ten-Day Notice (P-Ex. B).
The DOE did not file an answer to the Parents’ Due Process Complaint nor appeared at the scheduled hearings. SRO Appeal No.19-061 held that where the DOE offered no explanation or entered evidence to controvert the parent’s allegations, “the parent is entitled to a presumption as to the truth of the asserted facts underlying her IDEA claim.” The DOE’s failure to answer the Parent’s DPC or offered evidence to contradict the Parent’s alleged deficiency is an admission of the alleged facts. SRO Appeal No. 19-061. The factual allegations lodged in the Parents’ DPC are incorporated herein by reference. As a result of the DOE’s silence and failure to appear at the schedule hearing, the allegations found in the DPC filed by the parents are deemed admitted. As such, the parents’ request for relief went unopposed.
CONCLUSION OF LAW
The IDEA provides that children with disabilities are entitled to a Free Appropriate Public Education ("FAPE") (20 U.S.C. § 1400 [d][1][A]. A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”) (34 C.F.R. § 300.13). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). In order 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” Endrew F. v. Douglas County Sch. Dist. RE-1, No 15-827, 2017 WL 1066206, 137 S.Ct. 988, 69 IDELR 174 (U.S. Mar 22, 2017).
Decisions of impartial hearing officers must be on substantive grounds based on a determination of whether the student received a FAPE, 8 NYCRR § 200.5(j)(4)(i), except as follows:
In matters alleging a procedural violation, an impartial hearing officer may find that a student did not receive a free appropriate public education only if the procedural inadequacies impeded the student’s right to a free appropriate public education, significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of a free appropriate public education to the parent’s child, or caused a deprivation of educational benefits. Nothing in this paragraph shall be construed to preclude an impartial hearing officer from ordering a school district to comply with procedural requirements under this Part and Part 201 of this Title 8 NYCRR § 200.5(j)(4)(ii).
School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement (NYS Educ. Law § 4404(1)(c)).
The standard to apply where a child is unilaterally placed is whether “[the] unilateral private placement ... provides educational instruction specifically designed to meet the unique needs of a handicapped child” Gagliardo, 489 F.3d at 115): No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs.
To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. Gagliardo. 489 F.3d at 112 (quoting Frank G, 459 F.3d at 364-65).
Additionally, a board of education may be required to pay for educational services obtained for a child by the child's parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim. (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; see also Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park,459 F.3d 356 [2d Cir. 2006], cert denied, Board of Educ. of Hyde Park Cent. School Dist. v. Frank G.,2007 WL 2982269 [Oct. 15, 2007].
ANALYSIS
This case involves a unilaterally placed student. Notice was given to the DOE that the student would be placed in a private school because of its failure to provide the student with an individualized program designed to meet the child’s specific needs. By defaulting in this proceeding, the DOE has not opposed the Parents’ allegations regarding its failure to provide a FAPE and is therefore deemed to have admitted those allegations. In addition, it is clear from the testimony and documentary evidence that the Parents referred the Student to the CSE, that the student was eligible for classification as a student with a disability, and that the CSE failed to evaluate the student or offer him a program and placement for the 2021/2022 school year. I therefore find that the DOE failed to provide the Student with a FAPE for the 2021/2022 school year. The Parents therefore met the first of the three Burlington/Carter criteria for tuition reimbursement.
As stated supra, the Parents have the burden of proving that the unilateral placement was appropriate. In order to meet this burden, the Parent must establish, by a preponderance of the evidence, that the unilateral placements provided “educational instruction specifically designed to meet the unique needs of the student” (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 [2d. Cir. 2007]. However, the private school placement “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements” (Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d. Cr. 2006]. The private placement need not provide certified special education teachers or an IEP. Parental placements are not subject to the same mainstreaming requirements as a school district placement. The private school placement must be reasonably calculated to enable the child to receive educational benefits, and must be likely to produce progress, not regression.
In light of the DOE’s default, the Parents’ allegations regarding the appropriateness of the REDACTED SCHOOL placement are uncontroverted. In addition, I find that, based on the Parents’ documentary evidence package and testimony, the REDACTED SCHOOL placement was appropriate. The student made meaningful progress in the program. The evidence further established that the 2021/2022 REDACTED SCHOOL placement provided the student with educational instruction that was specifically designed to meet the student’s unique special education needs, supported by such services that were necessary to permit the student to benefit from instruction (P-Exs. C, D, E, F,G, H, I, J, K, O, and P).
I therefore find that the 2021/2022 REDACTED SCHOOL placement provided the student with educational instruction that was specifically designed to meet the student’s unique special education needs, supported by such services that were necessary to permit the student to benefit from instruction.
The Parents have therefore met the second of the three Burlington/Carter criteria for tuition reimbursement.
The determination of whether or not equitable factors support parents’ claim for tuition reimbursement hinges, in large part, on whether or not the parent cooperated with the CSE. Once again, I note that the DOE’s default in appearance renders the Parents’ allegations uncontroverted. Moreover, it is clear from the Record that the Parents cooperated with the CSE as best they could. They did everything the CSE requested. In addition, they provided the DOE with timely written notice of their intent to unilaterally place the Student at REDACTED SCHOOL and seek tuition reimbursement (P-Ex. B). It was the CSE that completely “dropped the ball” by failing to evaluate the student, failing to convene a CSE meeting duly constituted to develop an IEP, and failing to offer the student an appropriate placement for the 2021/2022 school year. As such, I find that there are no equitable issues that would preclude or limit tuition reimbursement (P-Exs. L, M, Q). The Parents therefore met the third of the three Burlington/Carter criteria for tuition reimbursement. Having met all three of the Burlington/Carter criteria, the Parent is entitled to reimbursement for the cost of the student’s 2021/2022 REDACTED SCHOOL placement.
The total cost of the student’s 2021/2022 enrollment at REDACTED SCHOOL is $120, 000.00 of which the Parents paid $250 (P-Exs. L, M, O, Q). The Parent is entitled to reimbursement for the entire cost of the student’s 2021/2022 attendance at REDACTED SCHOOL. The Parent’s request for tuition reimbursement for the 2021/2022 school year is granted.
The signed contract is included in the Hearing Record (P-Ex. L) and need not be resubmitted prior to reimbursement.
Based on the aforementioned and the evidence presented, I find that the DOE denied the student a FAPE; therefore, the relief sought by the Parents is hereby granted.
ORDER
IT IS HEREBY ORDERED that the New York City Department of Education is directed to fund the cost of the Student’s 2021/2022 ten-month school year placement and related services at the REDACTED school in a total amount not to exceed $120, 000.00; payment shall be made directly to the school no later than one (1) week from receipt of the present order; and it is further
ORDERED that the New York City Department of Education is directed to provide and fund the foregoing program on a ten-month school year basis by reimbursing the Parents for any payments they made to REDACTED school within two weeks of the submission of proof of payment, by issuing payment directly to REDACTED School for any balance due within two weeks of the submission of an affidavit setting forth the amount due.
Dated: October 1, 2023
Marcel P. Denis
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.
DOCUMENTS ENTERED INTO THE RECORD
Parent Exhibits
| Exhibit | Date | Description | Page Count |
|---|---|---|---|
| A | 04/14/23 | Due Process Complaint | 6 |
| B | 08/16/21 | Ten Day Notice | 6 |
| C | 2021 | REDACTED School Program Description | 6 |
| D | 03/10/22 | Educational Mid-Year Report | 3 |
| E | 2022 | Educational End of Year Report | 2 |
| F | May 2022 | Speech & Language Mid-Year Report | 2 |
| G | 2022 | Speech & Language End of Year Report | 1 |
| H | 01/01/22 | Occupational Therapy Mid-Year Report | 3 |
| I | 06/13/22 | Occupational Therapy End of Year Report | 8 |
| J | 2022 | Physical Therapy End of Year Report | 2 |
| K | 2021-2022 | REDACTED Class Schedule | 1 |
| L | 09/14/21 | Enrollment Contract | 8 |
| M | 07/12/23 | Tuition Affidavit | 1 |
| N | 2020 | Parents' Tax Return | 3 |
| O | 08/01/23 | Affidavit of REDACTED | 3 |
| P | 08/01/23 | Affidavit of REDACTED | 4 |
| Q | 08/01/23 | Affidavit of REDACTED | 3 |
DOE Exhibits
N/A
IHO EXHIBITS
| Exhibit | Date | Description | Page Count |
|---|---|---|---|
| I | Multiple dates | Compliance Date Order | 6 |
Footnotes
[1] Due Process Complaint, Petitioner Exhibit A.