NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
NYSED #598727 - NYC #247679
FINDINGS OF FACT AND DECISION - Corrected
Case Number: 247679 Student’s Name: REDACTED (Student) School District: N.Y.C. Dept. of Ed.
Impartial Hearing Officer: Kevin T. McGrath, Esq. Date of Filing: 03/23/2023 Hearing Requested by: REDACTED, REDACTED (Parents) Date of Hearing: 07/25/2023 Record Close Date: 08/02/2023 Date of Decision: 08/02/2023 Findings of Fact and Decision ii Case No. 247679
Names and Titles of Persons Who Appeared on July 25, 2023:
For the Department of Education (DOE): REDACTED, Esq., Agency Attorney For the Student: REDACTED, Esq., The Law Firm of REDACTED, P.C. REDACTED, Parent and witness REDACTED, witness Case No. 247679
INTRODUCTION
Parents, through counsel, filed a Due Process Complaint (DPC) on March 23, 2023. In the DPC, Parents allege that the Department of Education (DOE) failed to offer Student 1 a free appropriate public education (FAPE) for the 2022-2023 school year. 2 Parents seek an award reimbursing them for the tuition paid for Student’s attendance at Private School, a private program not approved by the Commissioner of Education for the education of students with disabilities, for the 2022-2023 school year.
The DPC asserts the DOE failed to provide Student with a FAPE for the 2022-2023 school year when its Committee on Special Education (CSE): (a) failed to consider documents submitted by Parents; (b) did not provide support or justification for decreasing the services provided to Student; (c) held an Individualized Education Plan (IEP) meeting which was not validly constituted; (d) made recommendations which were predetermined and were not developed with full and accurate consideration of Student’s particular and unique needs; (e) failed to offer sufficient services to address Student’s delays; (f) failed to create an IEP that adequately address the full range of Student’s academic, social/emotional, language, sensory/motor and behavioral needs; and (g) the Parents never received an offer of placement or School Location Letter for Student. The DPC requests
3
reimbursement/direct funding for tuition at Private School, for both out-of-pocket expenses and for payment of the outstanding balance directly to Private School.
4
As detailed below, I find that: (a) the DOE demonstrated they did not offer Student a FAPE for the 2022-2023 school year; (b) Private School offers Student an educational program with specially designed instruction sufficient to meet Student’s needs; (c) the equities support the Parent’s requested relief.
PROCEDURAL HISTORY
I was appointed the Impartial Hearing Officer (IHO) on April 25, 2023. The DOE did not hold a resolution meeting or file a due process response concerning this action. A Prehearing Conference was held on May 2, 2023, and a Prehearing Conference Summary and Order was issued the same day.[5] On May 25, 2023 and June 13, 2023 Status Conferences were held, and a Summary and Order was issued the same day as each conference.
A Due Process Hearing was held before me on July 25, 2023. At the July 25, 2023 hearing, DOE Representative produced nine exhibits, and all were admitted into the record without objection. [7] Parents’ Representative presented 17 exhibits, and all were admitted into the record.[8] Both Parties made opening statements. The DOE Representative then rested without producing any witness testimony. Private School Representative and Parent #1 provided testimony, in addition to their submitted affidavits, and DOE Representative cross-examined the witnesses. The parties then made closing statements. Three orders of extension were granted in the action. 9
1 Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution. 2
Ex. A. 3
Id. 4
Id.
JURISDICTION
The due process hearing was held, and a decision in this matter is being rendered 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., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.
FINDINGS OF FACT
After thoroughly reviewing the record, I make the following findings of fact and determinations.
Student was REDACTED years old at the commencement of the 2022-2023 school year and attended Private School 10 on a 10-month school year basis. The Student’s eligibility for special education supports and services is not disputed based on the CSE designation and uncontested finding that Student is classified as a student with “other health impairment.” Specifically, Student has been
11
diagnosed with Attention Deficit Hyperactivity Disorder, and Adjustment Disorder with mixed disturbance of emotions and conduct.
12
Student began receiving services from the DOE starting at three (3) years old. Before the 2022-2023 school year, Student had received 10 hours of Special Education Teacher Support Services (SETSS) along with related services for speech and language, occupational and counseling therapy. At Parent #1’s request, the CSE arranged for a neuropsychological evaluation on May 31, 2022 (2022 Neuropsychological Report). 13 Along with a detailed description of Student’s academic strengths and educational needs, the report makes various recommendations to address Student’s educational needs, including that Student be placed in a “structured, multisensory special education program with a limited student-to-teacher ratio.” 14
The CSE held a meeting on August 15, 2022 to prepare an IEP for the 2022-2023 school year (2022 IEP). 15 Parent #1 expressed at the meeting that Student required an increase in services because even with the current level of services, Student was struggling academically. During the prior school year, Parent #1 received multiple reports from the Student’s teachers detailing Student’s academic and behavioral challenges. 16 The 2022 IEP ultimately recommended placement at a DOE nonspecialized school (District 1-32), and that Student receive: (a) SETSS services three (3) periods a week, in a special education classroom, and also three periods a week in a separate resource room; (b) counseling services (one [1] time a week for 30-minutes in an individual setting and one [1] time per week for 30-minutes in a group setting); (c) occupational therapy (one [1] time per week for 30minutes in an individual setting and one [1] time per week for 30-minutes in a group of two setting); and (d) speech-language therapy (one [1] time per week for 30-minutes in an individual setting and one [1] time per week for 30-minutes in a group of three setting). 17 The 2022 IEP incorporates the
10
Ex. 1. 11
Id. 12
Ex. 8-16. 13 Parents object to the length of time it took to receive a copy of the 2022 Neuropsychological report. However, this delay is not raised as a denial of FAPE. 14
Ex. 8-17 to 8-19 15 Another IEP was created in September 2022 to add transportation services without any change to the placement and services recommendations. Ex.
2. As these documents are mostly similar and since transportation services were not raised as an element for the denial of FAPE, only the August 2022 IEP will be referenced in the FOFD. 16
Tr. 90.
Ex. 1-23 to 1-28.
various evaluations from the 2022 Neuropsychological Report. 18 The DOE records confirm that the CSE considered the report during the IEP meeting. 19
Parents disagreed with the recommendations of the 2022 IEP. Specifically, they felt the 2022 IEP did not meet Student’s management needs to support emotional and behavioral support or provide the individual attention and repetition needed for Student’s educational needs. 20 Furthermore, Parents objected to the 2022 IEP ignoring the 2022 Neuropsychological Report recommendations for “a structured, multisensory special education program” and instead offering six (6) periods a week of SETSS with related services. Additionally, Parent’s objected to the unexplained reduction from the 10 periods of SETSS per week offered in the prior IEP. 21
On August 23, 2022 a “Ten-Day Notice” was sent to the CSE, giving notice of Parent’s objections to the 2022 IEP and warning of their intention to unilaterally place Student at Private School. Thereafter, Student commenced classes at Private School in September 2022. A subsequent IEP was created for the 2022-2023 school year to add transportation services. 22 On October 18, 2023 the DOE issued a Prior Written Notice (PWN) and a School Location Letter, identifying Public School as the recommended placement location.
Private School
The Private School is a special education program that offers self-contained special education classrooms hosted within mainstream school sites.23 Private School Representative is the “Program Coordinator” for the Private School at this location. They possess a Master’s Degree in
24
“Curriculum, Teaching Learning Disability” and are a NYS certified special education teacher.
25
They have worked for Private School for seven years in various positions.26 Private School Representative’s responsibilities include supervising all aspects of the school program, developing the school curriculum, supervising teachers and services providers, handling admissions assessments, observing classrooms, and working directly with teachers and students. [27]
Private School enrolls students between the second through eighth grade who have IEP classification of Learning Disability or Speech & Language Impairment.[28] The classes are grouped based on the students’ academic, social, and learning needs.[29] Student’s class for the 2022-2023 school year contained a combination of fourth and fifth graders and had five students, one teacher, and one assistant (5:1:1). The class limitation of a five-student class size was a result of only five
students being enrolled at Private School as opposed to a limitation due to the educational need of Student or independent decision of Private School. 31 Student’s had three teachers throughout the day 32
18
Ex. 1 and Ex. 8. 19
Ex. 4-2. 20
Tr. 93. 21
Tr. 90. 22
Ex. 2.; The Parents executed a “Waiver to Amend IEP” (Ex. 5) so that a CSE meeting was not held to issue a new IEP. 23
Ex. P at ¶3. 24
Id. 25
Id. ¶2. 26
Id.
and received speech-language, occupational, and counseling services from individuals with NYS certifications. 33
Private School Representative is familiar with Student, from their classroom observations and supervision of the teaching staff. 34 From their observations, Private School Representative opines that Student is “sensory avoidant,” would retreat from unfamiliar situations, becomes overwhelmed by sensory experiences, and has difficulties with organization skills, following instructions, and compliance. 35 Academically, Student exhibited difficulty with high-order thinking and written expression. 36 The Private School’s education plan is individualized for Student, and the Student received individualized and small-group instruction in math and english-language subjects. 37 The Private School allows for peer mirroring and for Student to interact with “mainstream” neurotypically developing students at several times during the day, including during religious instruction, computer instruction, recess, and during school events. 38 Additionally, the daily schedule at Private School includes 90 minutes per day of religious studies. 39
The Private School Representative testified extensively about Student’s education and progress over the course of the 2022-2023 school year. 40 Parents have also seen Student make progress from Private Schools program, including being happier, having fewer tantrums about going to school, an increased willingness to learn, a decrease in anxiety, an improvement in reading, and an increased ability to approach other children to play. 41
Parents executed an enrollment contract on September 6, 2022 with Private School for the 2022-2023 school year. 42 Tuition at Private School is $68,900 (which includes separate itemized charges for Student’s related services). Parent’s made $5,000.00 as partial payments towards tuition
43
over the course of the school year. Parents request direct tuition funding as they are financially
44
unable to pay the tuition in full. 45 The enrollment contract contains a provision allowing for the release from the agreement if Parents accept an appropriate public-school placement.
46
33
Id. at ¶9. 34
Id. at ¶10. 35
Id. at ¶11. 36
Id. 37
Id. at ¶16 and 21. 38
Tr. 67. 39
Ex. L; Tr. 82. 40
Ex. P. 41
Ex. Q at ¶12. 42
Ex. Q at ¶11; Ex. M. 43
Ex. M. 44
Ex. N; Tr. 111-112. 45
Ex. Q at ¶11; Ex. O.
Ex. M at ¶6.
Credibility
Upon considering the evidence, including all admitted documents and the testimonies of the witnesses, I determine the following. In accepting the documents, I found them all relevant and representative of the facts for which they were offered. The weight I afforded them will be reflected in the analysis. As for the witnesses, I found no reason to doubt the veracity of their statements or the earnestness of their relevant opinions, and therefore find all the witnesses and their testimonies credible. The relative weight I afford them will likewise be reflected in the analysis. It is hereby noted that although the DOE cross-examined some of Parents’ witnesses, said cross-examination did not serve to entirely rebut the relevant testimony in question.
CONCLUSIONS OF LAW AND ANALYSIS
I hold that the DOE made procedural and substantive violations, which sufficiently establish a denial of FAPE for Student; Private School was an appropriate placement for Student; and the equities in the action favor Parents.
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 satisfied: (1) the DOE denied the student a FAPE; (2) the private placement is appropriate; and (3) the equities favor an order of tuition. 47 In New York, 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 a 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. 48
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. 49 When the local education district complies with the procedural requirements outlined in the IDEA, and when the IEP developed through those procedures is reasonably calculated to enable the student to receive educational benefits, a FAPE has been established. 50 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.” The DPC may address “any matter relating to the
51
identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education.” 52
47
See Sch. Comm. of Burlington v. Dept. of Educ., 471 U.S. 359, 367 (1985); Florence County Sch. Dist. Four v. Carter, 510 US 7, 12-15 (1993). 48
NY Educ. Law §4404(1)(c). 49
34 C.F.R. §300.13. 50
See Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 US 176, 206-207 (1982). 51
See Endrew F. v. Douglas County Sch. Dist. RE-1, 580 US 386 (2017).
20 U.S.C. §1415(b)(6)(A).
The DOE is not required to show that it attempted to “maximize” the potential of students with disabilities under Prong 1. 53 However, the IEP, among other requirements, must establish annual goals designed to meet the student's needs resulting from the student's disability, and must provide appropriate special education and services. 54 “Appropriateness” means that the IEP accurately reflects the results of evaluations to identify the student's needs, 55 offers sufficient special education services, 56
57 and is properly implemented. To demonstrate a FAPE, the DOE must offer “an IEP that is ‘likely to produce progress, not regression,’ and ... affords the student an opportunity greater than mere ‘trivial advancement.” 58 In addition, the IEP must be “reasonably calculated to provide some ‘meaningful’ benefit.” 59
Prong I
As detailed herein, the DOE did not establish under Prong I that FAPE was provided to the Student for the 2022-2023 school year.
In support of its case in chief, the DOE offered nine (9) exhibits at the hearing but did not present witness testimony. At the hearing, the DOE’s Representative argued that their evidence demonstrated that Student was provided a FAPE for the 2022-2023 school year and that the DOE offered placement in a program that would allow the Student to make progress. Nonetheless, the
60
absence of any testimony from a member of the 2022 IEP team limits the impact of the DOE Representative’s arguments because the documents alone, and without any clarifying information, do not sufficiently establish that the 2022 IEP was tailored to meet Student's academic and other needs.
Firstly, the delayed issuance of a school placement location until October 2022 resulted in the DOE denying Student a FAPE. Under the IDEA, the local education agency is required to provide the "frequency, location, and duration" of the "services" to be provided. 61 Despite the reference to "location" in Section 300.320(a)(7), the Second Circuit has held that it is not a per se procedural violation for the IEP to omit the name of the specific school, with such information to follow. Still,
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the school designation cannot come so late that it impedes the parents' ability to participate meaningfully in the school selection process. 63 For instance, a procedural violation occurred where the equivalent of a school location letter was sent "on June 15 for a school year beginning on July 6,” "on June 18 for a school year beginning on July 5," and on “June 18 for a school year beginning 64 65
53 See Rowley, 458 US at 189, 199; Grim v Rhinebeck Cent. Sch. Dist., 346 F3d at 377, 379; Walczak v. Florida Union Free Sch. Dist., 142 F3d 119, 132 (2d Cir. 1998) (an “appropriate” education is “not one that provides everything that might be thought desirable by loving parents”). 54
See generally, 34 CFR § 300.320(a) and 8 NYCRR § 200.4(d)(2). 55 See 34 C.F.R. § 300.320(a)(1); 8 NYCRR 200.4(d)(2)(i); Tarlowe v. Dept. of Educ., 2008 WL 2736027, at 6 (SDNY July 3, 2008), establishes annual goals related to those needs. 56 See 34 C.F.R. § 300.320(a)(4); 8 NYCRR 200.4(d)(2)(v); see Application of the Dept. of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dept. of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9. 57
See 8 NYCRR 200.4(e)(7); Application of a Child with a Disability, Appeal No. 08-087. 58
See Cerra v. Pawling Cent. Sch. Dist., 427 F3d 186, 195 (2d Cir. 2005), quoting Walczak, 142 F3d at 130. 59
See Mrs. B. v. Milford Bd. of Educ., 103 F3d 1114, 1120 (2d Cir. 1997); see Rowley, 458 US at 192. 60
Tr. 130-133. 61
34 C.F.R. § 300.320(a)(7). 62 See V.A. v City of NY, 2022 US Dist LEXIS 84556, at 14-15 (EDNY 2022); T.Y. ex rel. T.Y. v. NYC Dept. of Educ., 584 F.3d 412, 419-20 (2d Cir. 2009); C.F., 746 F.3d at 79. 63
See S.Y. v. N.Y.C. Dept. of Educ., 210 F. Supp. 3d 556, 574-75 (SDNY 2016). 64
Id., citing FB v. N.Y. City Dept. of Educ., 132 F. Supp. 3d 522, 541-43 (SDNY 2015).
Id.
on July 2.”66 “[T]he crux of the right to meaningfully participate in the school selection process is the right to ‘evaluate the school assignment,’ i.e., the right to acquire relevant and timely information as to the proposed school.” 67
In this action, the Parents are correct that the DOE's actions impeded their rights. The DOE did not timely provide a school placement letter for the 2022-20223 school year. The Parent presented credible testimony that they never received the letter at any point. It is not necessary to decide between the conflicting evidence regarding the service of the school placement letter, because even assuming Parents received the letter in October 2022, the DOE gave a placement location over a month and a half after the beginning of the school year. As such, without a placement location at the beginning of the school year, Parents’ decision to unilaterally place Student at Private School was appropriate. Parents were not obligated to withdraw Student part way through the school year because the DOE finally got around to meeting their obligations under the IDEA. Particularly salient here, as in the F.B. case, was the need for the Parents to identify and evaluate the particular classroom, teacher, and resources that would be provided to Student. In sum, "the IEP could not be
68
meaningfully evaluated independent of the proposed placement's ability to implement it." 69 In failing to provide a school placement letter or to provide Parents with information about the actual classroom and curriculum to which Student would be assigned, the DOE impeded the Parents' ability to participate meaningfully in the school selection process.
Secondly, the DOE fails to demonstrate that the 2022 IEP would allow the Student to make academic progress. It is again noted that the absence of any testimony evidence from the DOE or CSE members limits the impact of the DOE Representative’s arguments because the documents alone, and without any clarifying information, do not sufficiently establish that the 2022 IEP was tailored to meet Student's academic and other needs. Parent #1 establishes that even under the level of services offered during 2021-2022, Student was struggling academically and behaviorally.
70
However, the 2022 IEP reduces the services being offered to Student from 10 periods of SETSS per week to 6 periods of SETSS per week. The 2022 IEP and DOE at the hearing fails to explain the reason for the reduction in services. Moreover, despite 2022 IEP using the 2022 Neuropsychological Report to discuss Student’s learning needs and abilities, the IEP does not incorporate the report’s placement recommendations. The 2022 Neuropsychological Report recommends “a structured, multisensory special education program with a limited student-to-teacher ratio”, 71 but CSE ultimately recommended placement in a general education setting. Similarly to the unexplained reduction in services, the 2022 IEP and DOE at the hearing also fail to explain the grounds for ignoring the 2022 Neuropsychological Report recommendations. DOE has failed to meet its burden of proof or persuasion to demonstrate that the 2022 IEP and placement recommendation would allow Student to make academic progress. Accordingly, I hold that the substantive violations found in the 2022 IEP establishes a denial of FAPE to Student for the 2022-2023 school year.
66
Id. 67 See FB v. NYC Dept. of Educ., 132 F. Supp. 3d at 541-42, quoting V.S. ex rel. D.S. v. N.Y. C. Dept. of Educ., 25 F. Supp. 3d 295, 299 (EDNY 2014); S.Y. v NYC Dept. of Educ., 210 F Supp 3d at 573-575. 68 See FB v. NYC Dept. of Educ., 132 F. Supp. 3d at 541 (Finding that the information sought by Parents was directly relevant to their ability to assess the proposed placement and its capacity to implement the IEP). 69
Id. at 544. 70
Tr. 90.
Ex. E-17.
I conclude that the weight of the evidence in the record indicates that the procedural and substantive violations resulted in a deprivation of educational benefits to the Student. Accordingly, based on the above, I hold the DOE failed to provide the Student with a FAPE for the 2022-2023 school year.
Prong II
As detailed herein, Parents sufficiently established that Private School was a proper placement for the Student.
A private school placement must be “proper under the Act.” 72 This means the private school must offer an educational program that meets students’ special education needs. 73 A parent seeking tuition reimbursement “bear[s] the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.” 74 When determining whether a unilateral placement is appropriate, the issue turns to whether the placement is “reasonably calculated to enable the child to receive educational benefits.” 75 A private placement is appropriate if it provides instruction designed to meet a student’s unique needs. A parent needs only demonstrate that the placement
76
provides educational instruction specially designed to meet the unique needs of a student with a disability, supported by such services as are necessary to permit the child to benefit from instruction. 77
Taken as a whole, the testimony and documentary evidence show the Private School meets the Frank G. standard and “provides educational instruction specially designed to meet the unique needs” of the Student that will enable them to make progress. The evidence demonstrates the Private School is an appropriate placement because they: (1) specialize in serving students with difficulties in the acquisition of reading and writing skills and special education needs 78 and have hired teachers specially trained to do so; 79 (2) provide the Student with a small class student-to-teacher ratio and individual instruction for academic instructions; 80 (3) individualizes instruction for the Student in education instruction; and (4) the Student is making objectively established progress.
81 82
The Private School provides services in compliance with the needs of Student. Specifically, Private School Representative and Parents have demonstrated that the Student is making educational progress. Further, the DOE Representative’s cross-examination did not establish any evidence to dispute the claims Student was making progress. Even with the claimed incorporation of religious studies for a portion of the day and instruction in the Hebrew language, these alone do not demonstrate the Private School is inappropriate under the Burlington/Carter standard. 83
72
See Carter, 510 US at 12, 15; Burlington, 471 US at 370. 73
See Gagliardo v. Arlington Cent. Sch. Dist., 489 F3d 105, 112, 115 (2d Cir. 2007); Walczak, 142 F3d at 129 (2d Cir. 1998). 74 See Gagliardo, 489 F3d at 112 (“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.”; Frank G. v. Bd. of Educ. of Hyde Park, 459 F3d 356, 364 (2d Cir. 2006). 75
See Frank G., 459 F3d at 364; see Gagliardo, 489 F3d at 115. 76
20 U.S.C. § 1401(29); Educ. Law § 4401(1); 34 C.F.R. § 300.39(a)(1); 8 NYCRR § 200.1(ww); Hardison v. Bd. Of Educ. Of the Oneonta City Sch. Dist., 773 F3d 372, 386 (2d Cir. 2014). 77
See Gagliardo, 489 F3d at 112, citing Frank G., 459 F3d at 364-65. 78
Ex. P at 2 - 6. 79
Ex. P at 12 and 31. 80
Id.at 12, 16, and 21. 81
Ex. F. 82
Ex. P.; Ex. Q at ¶12
See Gagliardo, 489 F3d at 112, citing Frank G., 459 F3d at 364-65.
There is limited merit to the DOE Representative’s argument that the location is not appropriate due to the early dismissal on Friday. The early dismissal of Fridays is to ensure that Sabbath-observing students can arrive home prior to sunset, but it does result in Student not receiving any instruction in core academic subjects on Fridays. Based on the testimony of Private School
84
Representative and Parents’ exhibits, any potential reduction of instruction time on Friday does not entirely render the school to be inappropriate due to all the other services and academic instruction offered Student. Further, the DOE Representative’s cross-examination fails to show that Private School did not provide special education instruction or related services on Fridays. As such, the DOE does not refute the Parent’s evidence demonstrating that Private School is an appropriate placement location.
As a result of the above, I hold that Parents have met their burden in proving that Private School offered an educational program that met Student’s needs under Prong II of the Burlington/Carter standard.
Prong III
As detailed herein, the equities favor the Parent regarding the unilateral placement of the Student at the Private School.
The DOE Representative argued, essentially, that the equities did not favor the Parent and an award should be reduced due to the religious instruction at Private School. On this evidence, the DOE Representative argued that Student did not require tuition reimbursement, or that there should be a reduction in the award.
Under the third Burlington/Carter prong, courts consider “equitable factors” relevant to an order of tuition. 85 “[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.” 86 Specifically, equitable considerations include a parent’s participation in IEP meetings, visits to the proposed school placements, and notification of their unilateral placement decision to the DOE. 87
In this matter, Parents attended the 2022 IEP meetings. They engaged in a dialogue about Student’s education plan and their concerns about the 2022 IEP and requested that the CSE conduct a neuropsychological evaluation. 88 Parents provided timely “Ten-Day Notice” of their concerns with the DOE’s offer of FAPE for the Student for the 2022-2023 school year. 89 Parents detailed specific concerns regarding the Student’s special education in the “Ten-Day Notice.” 90 Furthermore, Parents notified the DOE of their intention to place the Student at Private School unilaterally. 91
84
Tr. 39-40. 85
See Gagliardo, 489 F3d at 112. 86
See Bettinger v. New York City Bd. Of Educ., 2007 WL 4208560, at 6 (SDNY Nov. 20, 2007). 87
See D.A. v. New York City Dept. of Educ., 769 F Supp 2d 403, 419-20 (SDNY 2011). 88 Ex. Q at 3-9; Ex. 1. 89
Ex. B. 90
Id.
Id.
In contrast to the actions of the Parents, the DOE unexplainedly ignores the recommendations of the neuropsychological report, which was prepared with the consent and funding of the DOE; unexplainably reduced the number of services being offered to a Student already struggling academically and behaviorally, and they only provided a school placement location over a month and a half after the start of the school year.
The Parents seek reimbursement for their out-of-pocket Private School tuition costs and direct funding for any unpaid tuition balance owed to Private School. This is an available remedy under the IDEA. 92 The direct funding of tuition is appropriate in this action because Parents have sufficiently established financial hardship. The Parents signed a contract with Private School for the 2022-2023 school year. Parents would remain liable for all tuition if a claim under IDEA were unsuccessful.
93 94
I find no issue with the reasonableness of the costs associated with Private School, including tuition. Moreover, I find that the weight of the evidence establishes that Parents cooperated with the DOE and the CSE’s efforts to develop the 2022 IEP and its recommendation by attending the 2022 IEP meeting, communicating with the CSE about their concerns for Student’s education, and by requesting the 2022 neuropsychological evaluation. 95 Overall, and after considering the record, I hold that the equities sufficiently support Parents’ claim for tuition reimbursement and order the DOE to fully fund Student’s tuition to Private School for the 2022-2023 school year.
Reduction of the tuition based on religious instruction
It is uncontested that part of the education at Private School involves religious instruction for 90 minutes per day, which is 20% of the school day. Parents’ Representative argues for
96
reimbursement in the full amount of the tuition, without any reduction for the religious portions of the education. They argue that the DOE was obligated to provide Student a FAPE, and since they did not provide a FAPE, they should pay the entire cost of the tuition for Private School as there was no entanglement between the religious instruction and the government’s purpose. The DOE Representative objected to an award covering the religious part of the daily instruction.
The intent of the IDEA is to authorize reimbursement for the cost of private special education services when a school district fails to provide a FAPE. Further, Courts have held that while the
97
ultimate decisions about a disabled child's education “rest in the hands of the parents, this right is not absolute.” 98 The Court continued to state that: "[I]n opting unilaterally to place [the child at a private Jewish school], though he was otherwise entitled to receive a [FAPE], [the parents] must accept that public monies will not fund it." 99 Similarly, here, Parents unilaterally selected a program that contains a significant portion of daily religious instruction, and the funds intended under the IDEA for special education instruction should not be used to subsidize this instruction. Accordingly, the award relating to the Private School tuition shall be reduced by the amount of religious instruction, which equates to a reduction of the tuition to $44,800. 100
92 See Mr. and Mrs. A. v. New York City Dept. of Educ., 769 F Supp 2d 403, 406 (SDNY 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”). 93
Tr. at 99. 94
Ex. M at 6. 95 See M.H. v. N.Y.C. Dept. of Educ., 685 F3d 217, 254 (2d Cir. 2012); see also C.F. ex rel. R.F. v. N.Y.C. Dept. of Educ., 746 F3d 68, 82 (2d Cir. 2014). 96
Ex. L; Tr. 82. 97
See Forest Grove, 557 U.S. at 247; Doe v. East Lyme Bd. of Educ., 2012 U.S. Dist. LEXIS 136420, *78 (Dist. Conn 2012). 98 See Doe v. East Lyme Bd. of Educ., 2012 U.S. Dist. LEXIS 136420, *78, citing J.G. v. Kiryas Joel Union Free Sch. Dist., 777 F. Supp. 2d 606 (SDNY 2011). 99
Id. 100 The reduction for religious instruction is only applied to the $55,000 tuition and $1,000 registration fees stated in the Private School contract, and not to separately itemized charges for the related services because there was no overlap between the services and religious element of Private School. See Ex. M.
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY
ORDERED THAT:
(1) The DOE denied Student a FAPE for the 2022-2023 school year, and
(2) Parents’ claim for tuition reimbursement for Student’s unilateral placement at the Private School is GRANTED for the 2022-2023 school year, as follows:
a. The DOE shall reimburse Parents for their out-of-pocket payments for Student’s tuition at the Private School for the 2022-2023 school year in an amount not to exceed
$5,000.00 within 35 days of receipt of the invoice from the Private School or Parents.
b. The DOE shall directly fund for Student’s tuition at the Private School for the 2022- 2023 school year in an amount not to exceed $52,700.00 within 35 days of receipt of the invoice from the Private School or Parents.
SO ORDERED.
Kevin T. McGrath Dated: August 2, 2023 Kevin T. McGrath, Esq. (signed electronically) Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the Parents 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.
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APPENDIX A – REDACTION IDENTIFICATION PAGE
Redacted Information Term Used In FOFD REDACTED Student REDACTED Date of Birth REDACTED Student’s I.D. Number (OSIS) REDACTED Parent #1 REDACTED Parent #2 REDACTED, Esq. DOE Representative REDACTED, Esq. Parents Representative REDACTED Private School REDACTED Private School Representative REDACTED Public School
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APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD
District Exhibits
Exhibit Title Date Pages
1 IEP 08/15/2022 31
2 IEP, Amendment of 8/15/22 IEP 10/20/2022 31 3 Prior Written Notice 10/18/2022 5 4 School Location Letter 10/18/2022 5 5 Waiver of Amend IEP 10/04/2022 1 6 OSH Transportation (LTT) 09/23/22 2 7 Social History 08/22/2022 1 8 Neuropsychological Evaluation 5/31/2022 19 9 School Location Letter 10/18/2022 2
Parents Exhibits
Exhibit Title Date Pages A Impartial Hearing Request 03/23/2023 3 B Ten Day Notice Letter 08/23/2022 3 C Letter to CSE Chairperson 11/16/2021 4 D Additional Reevaluation Notice 03/10/2022 5 E Neuropsychological Evaluation 05/31/2022 19 F Academic IEP Goals 11/28/2022 7 G Academic Progress Report 05/15/2023 1 H Occupational Therapy Goals 12/08/2022 1 I Occupational Therapy Progress Report 05/15/2023 1 J Speech-Language Report 22-23 1 K Program Description 22-23 1 L Daily Schedule 22-23 1 M Enrollment Contract 09/06/2022 1 N Affidavit of Payment 05/04/2023 1 O Tax Return 2021 2 P Affidavit of REDACTED July 2023 7 Q Affidavit of REDACTED July 2023 4
IHO Exhibits
Exhibit Title Date Pages
I Prehearing Conference Summary and Order 05/02/2023 1 II Status Conference Summary and Order 05/25/2023 1 III Status Conference Summary and Order 06/13/2023 4 IV Orders of Extension Various 3
Footnotes
[5] IHO Ex. I.
[6] IHO Ex. II and III.
[7] See Appendix B.
[8] See Appendix B. IHO Ex. IV.
[27] Id. at ¶3.
[28] Id. at ¶5.
[29] Id. at ¶6.
[30] Id. at ¶12; Tr. 52. 31 Tr. 60-61. Private School does set a classroom limit of 10-12 students per class. 32 Two of the teachers held Masters’ Degrees in Special Education and are NYS-licensed and certified special education teachers. One of the teachers possessed a NYS certification in Special Education.