NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
CASE NUMBER: 598768 - NYC: 247717
FINDINGS OF FACT AND DECISION
| Field | Value |
|---|---|
| Case Number | 247717 |
| Student’s Name | REDACTED (“Student”) |
| Date of Birth | REDACTED |
| School District | REDACTED |
| Hearing Requested by | REDACTED (“Parent”) |
| Request Date/Date Complaint Filed | April 24, 2023 |
| Date(s) of Hearing | October 27, 2023 |
| Actual Record Closed Date | November 1, 2023 |
| Date of Decision | November 5, 2023 |
| Time Sensitive | Yes |
| Hearing Officer | Robin Levin, Esq. |
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 27, 2023
For the Student:
REDACTED (“Parent’s Attorney”)
REDACTED (“Parent”)
REDACTED (“Principal at the Private School”)
For the Department of Education:
REDACTED (“DOE Attorney”)
INTRODUCTION
This is a decision rendered after a due process hearing (“DPH” or “hearing”) pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1400 et seq., and its implementing regulations, 34 C.F.R. §300 et seq., the New York State Education Law, Educ. Law Article 89 §4404 et seq., and its implementing regulations, 8 NYCRR §200.5 et seq. [1] This case concerns Student, a REDACTED-year-old, who is classified as a student with a Multiple Disabilities. [2]
On April 24, 2023, the Parent, through the Parent’s Attorney, filed a Due Process Complaint (“DPC”) against the New York City Department of Education (“DOE” or District”). [3] In the DPC, the Parent alleged that the DOE failed to develop a procedurally and substantively valid Individualized Education Program (“IEP”) for the Student and failed to offer the Student a Free Appropriate Public Education (“FAPE”) for the 2022-2023 school year. [4] The Parent alleged that the DOE’s Committee on Special Education (“CSE”) convened on March 29, 2022 to develop an IEP for the Student and failed to: (1) conduct updated evaluations of the Student; (2) fully or adequately review or consider current, sufficient and appropriate evaluative and documentary material to justify its recommendations; (3) identify the Student’s present levels of performance and address her learning challenges and deficits; (4) recommend appropriate interventions and services to address her needs; (5) adequately consult the Parent and the Student’s current school representatives regarding its recommendations, including the development of appropriate, measurable goals and short-term objectives; and (6) recommend a special education program and related services specifically designed to meet the Student’s unique needs for the 2022-2023 school year. [5] The Parent also alleged that the DOE did not provide a copy of the IEP and did not provide any public school placement for the Student at all for the 2022-2023 school year. [6] Therefore, the Parent unilaterally placed the Student in a private school (“Private School”) for the 2022-2023 school year. [7]
By way of relief, the Parent seeks an award of tuition reimbursement and direct funding for the Student’s attendance at the Private School for the 2022-2023 school year. [8] The Parent argued that the Private School was an appropriate placement for the Student. [9] In addition, the Parent argued that the equities support her claim for tuition reimbursement and direct funding for the school year at issue since the Parent fully cooperated with the CSE. [10]
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 provided the Student specially designed instruction sufficient to meet the Student’s needs. I find that the equities support the Parent’s request for tuition reimbursement and direct funding in full.
PROCEDURAL HISTORY AND POSITIONS OF THE PARTIES
On April 26, 2023, I was appointed as the Impartial Hearing Officer (“IHO”). On June 2, 2023, the parties appeared via videoconferencing for a pre-hearing conference (“PHC”). [11] The parties requested additional time for the DOE to determine if the matter was recommended for settlement and whether pendency was at issue. [12] On June 13, 2023, the DOE signed the Pendency Implementation Form. [13] Status conferences were held on June 13, 2023, July 5, 2023, July 26, 2023, August 31, 2023, September 27, 2023, and ultimately, the case was scheduled for a hearing. [14]
A virtual DPH was held on October 27, 2023. It was a closed hearing. The Parent was present and represented by the Parent’s Attorney. The DOE Attorney was also present. The DOE Attorney declined to give an opening statement. [15] The DOE Attorney declined to admit any documentary evidence into the hearing record or call any witnesses at the hearing. [16] The Parent’s Attorney gave an opening statement and sought the entry of 10 exhibits into the hearing record without objection, including affidavit testimony from the Principal at the Private School. [17] The DOE cross-examined the Principal at the Private School. [18] The Parent testified live for direct examination. [19] The DOE Attorney declined to cross-examine the Parent, but I asked the Parent a few clarifying questions. [20] The Parent rested, and the parties gave closing statements. [21] The record was closed on November 1, 2023 after receipt of the hearing transcript.
In the DOE’s closing statement, the DOE Attorney took the position that the Parent failed to show that the unilateral placement at the Private School was appropriate for the Student for the 2022-2023 school year. [22] In addition, the DOE Attorney argued that if any award for tuition funding or reimbursement is granted, a deduction should be made for the portion of the Student’s schedule attributed to religious instruction. [23]
The Parent took the position that the DOE declined to offer any documentary or testimonial evidence at the hearing to show that the DOE provided the Student a FAPE for the 2022-2023 school year, functionally conceding Prong 1 of the Burlington/Carter standard. [24] In addition, the Parent’s Attorney argued that the hearing record demonstrates that the unilateral placement at the Private School was appropriate for the Student for the 2022-2023 school year because the Private School provided a high level of individualized and tailored instruction. [25] The Parent’s Attorney also argued that the DOE did not raise any equity issues and the evidence shows that the Parent fully cooperated with the DOE throughout the IEP process. [26] Lastly, the Parent’s Attorney argued that even though the Private School provided the Student with minimal levels of nonsecular instruction, full tuition reimbursement and direct funding is not precluded under the law. [27]
LEGAL FRAMEWORK
This case concerns the Parent’s request that the DOE reimburse them and directly fund the cost of the Student’s tuition for the 2022-2023 school year. [28] 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. [29] 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.” [30] A school district must pay for the cost of a student’s tuition at a private school if the three “prongs” of the Burlington/Carter test are met: (1) the district denied the student a FAPE; (2) the private school unilateral placement is appropriate; and (3) the equities favor an order of tuition reimbursement or funding. [31]
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. [32] 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. [33] 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. [34] Under the IDEA, students with disabilities are entitled to be educated in the least restrictive environment that meets their unique needs. [35]
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.” [36] 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.” [37] 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.’” [38]
Moreover, a school district must be able to “offer a cogent and responsive explanation for their decisions” in creating the IEP. [39] 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. [40] The IEP should: (1) accurately reflect the results of evaluations to identify the student’s needs, [41] (2) provide for the utilization of sufficient special education programs or services, [42] and then (3) the IEP must be properly and timely implemented. [43] Failure to implement substantial or significant provisions of an IEP is a denial of a FAPE. [44]
In due process hearings under the IDEA in New York, school districts have the burden of proof, including the burden of production and burden of persuasion. However, there is an exception in that a parent seeking tuition reimbursement or funding for a unilateral parental placement has the burden of persuasion and burden of production regarding the appropriateness of such placement. [45] Parents seeking reimbursement or tuition funding “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.” [46] 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.’” [47]
A unilateral private school placement is appropriate if it is “reasonably calculated to enable the child to receive educational benefits.” [48] Parents need not show that the unilateral placement is perfect or that it meets all state educational standards. [49] 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.” [50] In addition, a unilateral placement is appropriate if it provides instruction specially designed to meet the unique needs of a student. [51] 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. [52] A private school placement must be “proper under the Act.” [53] This means that the Private School must offer an educational program which meets the Student’s special education needs. [54]
Under Burlington/Carter, if the parents are financially obligated to pay for the contracted tuition costs and have met their prong 2 burden, the contract must be fully reimbursed or directly funded by the district unless, as a matter of equitable considerations, the costs are excessive or should otherwise be reduced. [55] The courts have “broad discretion to consider the range of all relevant facts in determining whether and to what extent awarding relief is equitable.” [56] 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." [57] “[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.” [58]
Specifically, equitable considerations include the parents’ participation in IEP meetings, visits to the proposed school placements, and notification of their unilateral placement decision to the District. [59] In addition, a hearing officer may consider many additional factors, including whether a parent’s unilateral withdrawal of the child from the public school was justified, whether the parent should have sought need-based scholarships or other financial aid from the private school, whether there was any fraud or collusion in generating, or inflating, the tuition to be charged to the school district, and whether the arrangement with the school was fraudulent or collusive in any other respect. [60] “Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable.” [61] Furthermore, direct tuition funding is relief encompassed by the equitable remedial powers inherent in IDEA. [62] 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.” [63]
FINDINGS OF FACT AND DECISION
After a full review of the hearing record, I make the following findings of fact and determinations. Overall, I find all exhibits admitted into the hearing record to be relevant, and I find all the witnesses credible. I base the following on the record generated at the hearing.
The Student is currently REDACTED years old and presents as friendly and enthusiastic. [64] She is classified by the CSE as a student with Multiple Disabilities. [65] The Student has been diagnosed with Cerebral Palsy as well asREDACTED. [66] She has very poor muscle tone and a heart condition. [67] The Student’s disabilities impact her in school. She has significant delays in expressive, receptive, and pragmatic language skills, fine and gross motor skills, daily living skills, and sensory processing. [68] She is very distractable, has a lot of difficulty with focusing and processing information, and she tires easily. [69] The Student is a multisensory learner and “requires a high level of individual instruction, prompting, review and repetition to learn and retain new academic skills.” [70]
Prong 1
The Parent alleged that the DOE denied the Student a FAPE for the 2022-2023 school year because the DOE failed to: (1) conduct updated evaluations of the Student; (2) fully or adequately review or consider current, sufficient and appropriate evaluative and documentary material to justify its recommendations; (3) identify the Student’s present levels of performance and address her learning challenges and deficits; (4) recommend appropriate interventions and services to address her needs; (5) adequately consult the Parent and the Student’s current school representatives regarding its recommendations, including the development of appropriate, measurable goals and short-term objectives; and (6) recommend a special education program and related services specifically designed to meet the Student’s unique needs for the 2022-2023 school year. [71] The Parent also alleged that the DOE did not provide a copy of the IEP and did not provide any public school placement for the Student at all for the 2022-2023 school year. [72]
As to Prong 1 of the Burlington/Carter standard, I find that the DOE failed to meet its burden at the hearing. The DOE Attorney did not seek to admit any documentary evidence into the record. [73] In addition, the DOE Attorney waived the DOE’s opening statement, and did not call any witnesses to testify at the hearing. [74] The DOE declined to offer any evidence at all of a FAPE being provided to the Student for the 2022-2023 school year, and therefore, the DOE declined to “offer a cogent and responsive explanation for their decisions” in creating the March 29, 2022 IEP. The DOE did not even provide the IEP at issue in this case. 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. [75] The DOE did not present any evidence at all and thus, could not rebut any of the Parent’s allegations.
Moreover, regardless of whether the DOE presented any witnesses or documentary evidence at the hearing, a review of the hearing record supports a finding that the DOE did not provide the Student with a FAPE for the 2022-2023 school year. While it was not the burden of the Parent to show that the DOE failed to provide a FAPE to the Student, the Parent testified credibly that the CSE convened an IEP meeting on March 29, 2022 and the Parent participated in the IEP meeting. [76] Prior to the IEP meeting, the DOE never conducted a speech-language evaluation, and the Parent could not recall when the last time the DOE conducted occupational therapy and physical therapy evaluations. [77] Furthermore, the Parent testified that the last time the DOE conducted a psychoeducational evaluation of the Student was six years ago in 2017. [78] As a result of the March 29, 2022 IEP meeting, the CSE recommended a 12:1:1 special class in a District 75 (“D75”) school, with adaptative physical education and the related services of counseling, occupational therapy, physical therapy, and speech-language therapy, as well as a 1:1 health paraprofessional, all on a 12-month basis. [79]
The Parent did not agree with the CSE’s recommendations. [80] Primarily, the Parent did not believe that the Student required an extended school year program because during the summer months, the Student benefits from social interactions and works on developing her social skills.[81] In addition, during the March 29, 2022 IEP meeting, a member of the CSE team told the Parent that the DOE did not “really have a program that was going to fit [the Student’s] needs.” [82] The Parent did not believe the recommended program could provide the Student with the significant levels of individualized instruction and 1:1 support she needs in order to make meaningful progress. [83] Moreover, although the CSE told the Parent the DOE’s recommendations at the IEP meeting, the Parent never received a copy of the March 29, 2022 IEP, and the Parent never received a school location letter recommending a public school placement for the Student for the 2022-2023 school year. [84] The Parent sent the DOE a letter (“Ten-Day Notice”) on August 19, 2022 explaining her concerns with the CSE’s recommendations and that she has not yet received a copy of the IEP or a public school placement. [85] The DOE did not respond to the Parent’s Ten-Day Notice. [86] Overall, I find the Parent’s testimony regarding the March 29, 2022 IEP credible, and I find that the DOE failed to offer the Student a FAPE for the 2022-2023 school year.
Prong 2
Next, I must consider whether the Parent’s unilateral placement at the Private School was appropriate for the Student. The hearing record shows that on September 6, 2022, the Parent executed an Enrollment Contract, enrolling the Student in the Private School for the 2022-2023 school year. [87] The Student attended the Private School from September 6, 2022 to June 20, 2023.[88] According to the Enrollment Contract, the total cost of the Student’s tuition was $98,000. [89] The cost of related services including speech-language therapy, occupational therapy, physical therapy, and counseling was included in the cost of the tuition. [90] The Parent is liable for the entire cost of tuition under the terms of the Enrollment Contract and can receive a full refund or a partial refund if the Student withdraws from the Private School to attend an appropriate public school placement. [91] The Parent made 12 payments to the Private School towards the costs of tuition totaling $10,800. [92] The DOE paid the Private School $11,086.67 during the pendency of these proceedings pursuant to the pendency agreement signed by the parties. [93] The remaining balance owed to the Private School is $76,113.33. [94] The Parent testified that she could not afford to pay the tuition in full and seek reimbursement. [95]
Here, the DOE Attorney argued in the DOE’s closing statement that the Parent failed to show that the Private School was appropriate for the Student because the instruction at Private School “was not uniquely tailored to meet the Student’s individualized needs.” [96] I disagree. I find that the evidence in the hearing record supports a determination that the Private School was appropriate for the Student for the 2022-2023 school year. I find that the Private School meets the Frank G. standard and provided the Student educational instruction that is designed to meet the Student’s unique needs and enable the Student to make progress in light of her multiple disabilities.
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.’” [97] The hearing record shows that the Private School serves “students with special needs [in] a comprehensive and nurturing educational environment.” [98] The Private School’s low student-teacher ratios allow for differentiated instruction to meet the Student’s individual learning needs. [99] For the 2022-2023 school year, 40 students attended the Private School, ages 14 to 21, in 7 ungraded special education classrooms. [100] The Principal at the Private School testified credibly that she “participated in creating and revising an individualized curriculum for [the Student].” [101] The Private School placed the Student in a special education classroom with a total of 8 students, 2 lead teachers and 1 assistant teacher. [102] The other students in the class had a similar learning profile and similar academic skills. [103]
Additionally, the Private School provided the Student with instruction from trained teachers. The law in this circuit is that “a private placement need not provide certified special education teachers…for the disabled student,” but in this case, the Private School nevertheless ensures that its teachers have the training and specialization necessary to teach the Student based on her needs. [104] One of the lead teachers in the Student’s classroom has a master’s degree in special education and is a New York State licensed and certified special education teacher. [105] The other lead teacher has a bachelor’s degree and is studying to become a board certified behavior analyst (“BCBA”). [106] The Student’s assistant teacher also has a bachelor’s degree. [107] The Private School also provides trainings and professional development to all teachers throughout the school year regarding best practices for instructing and supporting students with social/emotional, behavioral, executive functioning, activities of daily living, and vocational skill needs. [108] Therefore, I find that the teachers have sufficient training to teach the Student based on her unique needs and learning profile.
Furthermore, the Private School developed a specialized program for the Student with individualized goals. [109] The teachers worked with the Student “individually and in small groups to address [her] academic, social, emotional, and behavioral needs.” [110] The Student had individualized goals to meet in reading, language, writing, math, history, financial literacy, decoding, speech, occupational therapy, counseling, art, gym, social skills, STEM, life skills, computers, and career training. [111] The Student’s schedule also included prayer, bible studies, and Jewish Law. [112] “Her teachers and therapists provided her with a high level of individual, differentiated, multisensory instruction, with concepts and skills broken down into small steps and with a lot of verbal prompting, verbal praise, and repetition and review.” [113] The teachers used scaffolding, manipulatives, and visuals to assist with instruction and helped the Student stay regulated and focus on the tasks, enabling her to learn, make progress, and retain new skills. [114]
Moreover, the Private School was appropriate because the Student made progress at the school. Significant educational progress can be a factor weighing in favor of the appropriateness of the parent’s unilateral placement. [115] 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. [116] In this case, I find that the Student made significant progress through the 2022-2023 school year. By the end of the school year, the Student achieved her goals in reading, language, math, science, history, current events, decoding, speech, counseling, life skills, STEM, art, and gym, and the Student made “steady progress” in writing, financial literacy, occupational therapy, physical therapy, social skills, career training, and computers. [117]
Specifically, by the end of the school year, the Student was able to identify words following specific phonemic patterns and she “achieved her goal of strengthening her decoding and fluency skills by reviewing syllabication rules and complex phonemic pattern within the context of shared reading of a novel.” [118] In addition, the Student successfully composed a written paragraph in response to a prompt with assistance using teacher-made templates and frequent check-ins from her teachers. [119] The Student also made progress in math. The teachers used individualized, multisensory instruction with manipulatives, visuals, and repetition to help the Student meet her goals of adding and subtracting decimals, converting improper fractions to mixed numbers, and functional math skills such as budgeting money when planning a party. [120] The Parent testified that she has observed the Student make meaningful progress through the school year. [121] I find that the tailored curriculum provided to the Student by the Private School was critical to enabling her to learn and make progress.
Furthermore, the Private School is appropriate for the Student because it provided the Student with appropriate related services including speech-language therapy, occupational therapy, physical therapy and counseling services, and the Student has shown progress in her related services. [122] The Student received speech-language therapy twice per week, both individually and in a group, provided by a licensed speech and language pathologist to address her language deficits. [123] The speech-language therapy sessions focused on improving the Student’s expressive, receptive, and pragmatic language skills using the Texting Etiquette Program, video clips and role play. [124] By the end of the 2022-2023 school year, the Student expanded her vocabulary and could properly retell stories and “use vivid descriptions to recall characters and setting.” [125] Additionally, the Student received occupational therapy where she successfully demonstrated uniformity of letter and word sizing and spacing 80% of the time. [126] She also demonstrated improved in-hand manipulation skills by picking up 4 pennies one at a time.[127] In physical therapy, the Student improved her ability to ambulate safely around the Private School, her gait has improved, and she is able to carry her books and other items in her hands and across her body. [128] Lastly, in counseling services, the Student improved her responses to situations in socially appropriate and respectful ways while also improving her executive functioning skills, focus, and attention. [129]
In addition, the Private School provided the Student with life skills, social skills, and vocational skills training. She received 1:1 instruction from a job coach and learned culinary skills, acting, and maintaining a professional appearance. [130] By the end of the school year, the Student could ignite a flame independently to cook, measure ingredients, and maintain a mature demeanor with minimal prompting from her teachers. [131] Overall, the hearing record establishes that the Student’s unique special education needs have been met by the Private School. The instruction offered at the Private School was “reasonably calculated to enable the child to receive educational benefits.” [132] I find the DOE’s argument concerning the appropriateness of the Parent’s unilateral placement without merit, and I find that the Parent has met her 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
Next, I must consider the equities. Overall, I find that the equities favor the Parent. Here, not only did the Parent fully cooperate with the CSE, but the evidence also shows that the Parent fully participated in the IEP process. [133] The Parent’s cooperation and participation weighs in favor of the Parent’s request for a tuition award under Prong 3 of the Burlington/Carter standard. [134] Here, the Parent participated in the March 29, 2022 IEP meeting. [135] Additionally, the Parent shared her concerns with the CSE and provided the necessary Ten-Day Notice of her intent to unilaterally place the Student in the Private School. [136] The DOE did not submit any evidence at the hearing describing its response to the Ten-Day Notice, if any, and the Parent testified that the DOE did not respond. [137] Furthermore, I find that the cost of the Student’s tuition was reasonable.
Nonsecular Instruction
The DOE Attorney did argue, in her closing statement, that if a tuition award is granted, it must be reduced because the Private School provided the Student with religious instruction. [138] The Parent disagreed, and argued that minimal amounts of nonsecular education provided by the Private School does not preclude an award of full tuition funding and/or reimbursement. [139] I agree with the Parent. In a recent decision, Application of a Student with a Disability, Appeal No. 23-133, the State Review Officer (“SRO”) considered whether a reduction of a tuition award is supported by relevant federal authority. The SRO discussed multiple Supreme Court and lower court cases and determined that in certain circumstances, “federal or state governments must provide reimbursement or payment to religious institutions under federal or state programs.” [140] My own review of the same leads me to the same conclusion as the SRO, the principles derived from the federal authority “present[] no basis pursuant to the Establishment Clause for preventing the [Parent] from obtaining full reimbursement for the services based on [her] individual choice to place the [S]tudent at a parochial school.” [141] I find that the hearing record supports full reimbursement and direct tuition funding in this matter as the purpose of a tuition award is “simply [to] make[] parents whole, by reimbursing them for expenditures which they would not have been compelled to make had the boards of education in question offered their children appropriate educational placements in the first instance.” [142] Here, the District failed to provide a FAPE to the Student for the 2022-2023 school year. In addition, the Parent met her burden to show that the Private School was appropriate and met the Student’s unique special education needs, and the equities favor the Parent. Therefore, the Parent is entitled to a full tuition award under the Burlington/Carter analysis, and I find that the minimal amount of time the Student spent on religious studies do not preclude a full tuition award. After considering the entire hearing record, a combination of reimbursement and direct tuition funding is warranted in this matter to remedy the denial of a FAPE for the 2022-2023 school year.
ORDER
Based upon the above Findings of Fact and Decision, it is hereby:
1. ORDERED that Parent’s claim for direct tuition funding and reimbursement for the Student’s unilateral placement at the Private School is GRANTED in full for the 2022-2023 school year. The New York City Department of Education shall reimburse the Parent in the amount of $10,800 within 15 days of the date of this Order. If the Parent has made any additional payments to the Private School, the Department of Education shall reimburse the Parent within 15 days upon submission of proof of the additional payments made.
2. ORDERED that the New York City Department of Education shall directly pay the Private School in the amount of $76,113.33 within 15 days of the date of this Order less any additional amount paid during the pendency of these proceedings. [143]
SO ORDERED.
DATED: November 5, 2023
____________________________
Robin Levin, Esq.
Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the parent and/or the Public-School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.
An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.
APPENDIX A – EXHIBITS ENTERED INTO THE RECORD
PARENT EXHIBITS
| Exhibit | Document | Date | Pages |
|---|---|---|---|
| A. | Impartial Hearing Request | 4/24/2023 | 7 |
| B. | Ten-Day Notice | 8/19/2022 | 2 |
| C. | Pendency Implementation Form | 6/13/2023 | 2 |
| D. | School Program Description | 2022-2023 | 1 |
| E. | School General Studies Report Card | 2022-2023 | 4 |
| F. | Daily Schedule | 2022-2023 | 2 |
| G. | Tuition Affidavit | 8/22/2023 | 1 |
| H. | Enrollment Contract | 9/06/2022 | 1 |
| I. | Proof of Payment | 2022-2023 | 13 |
| K. | Affidavit of the Principal at the Private School | 10/27/2023 | 7 |
DOE EXHIBITS
None
IHO EXHIBITS
None
Footnotes
[1] Exhibits will be referred to as “Ex.” followed by lettered designations for Parents’ Exhibits, numbered designations for DOE’s Exhibits, and uppercase roman numeral designations for Impartial Hearing Officer’s Exhibits. Exhibit designations will be followed by the page numbers as needed and appropriate. For example, Parents’ Exhibit A, page 1, will be referred to as (Ex. A-1). Transcripts of the Pre-Hearing Conference and the Due Process Hearing will be referred to as “PHC Tr.” and “DPH Tr.” followed by the page number(s) within the transcript as needed.
[2] Ex. A.
[3] Id. I find that all of Parent’s claims can be resolved under the IDEA, and claims brought pursuant to Section 504 are otherwise subsumed.
[4] Id.
[5] Ex. A-1-2.
[6] Id.
[7] Ex. A-3.
[8] Id.
[9] Id.
[10] Id.
[11] PHC Tr. 1-11.
[12] Id.
[13] Ex. C.
[14] Four extensions of the compliance date were granted due to settlement negotiations and witness availability (See Order of Extension 1, Order of Extension 2, Order of Extension 3, and Order of Extension 4).
[15] DPH Tr. 47.
[16] DPH Tr. 44, 50.
[17] DPH Tr. 47-50. A detailed list of the admitted exhibits is attached to this decision as Appendix A, “Exhibits Entered Into the Record.”
[18] DPH Tr. 56-59.
[19] DPH Tr. 62-72.
[20] DPH Tr. 72-76.
[21] DPH Tr. 76-90.
[22] DPH Tr. 77.
[23] DPH Tr. 77-78.
[24] DPH Tr. 79.
[25] DPH Tr. 79-83.
[26] DPH Tr. 83-84.
[27] DPH Tr. 84-90.
[28] Ex. A.
[29] 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)).
[30] 20 U.S.C. § 1415(b)(6)(A).
[31] Florence Cnty. Sch. Dist. Four v. Carter, 510 U.S. 7, 16, 114 S. Ct. 361 (1993); Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 367 (1985).
[32] 20 U.S.C. § 1412 (a)(1)(A); Education Law §§ 4402(2)(a), (b)(2).
[33] 34 C.F.R. §300.13.
[34] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
[35] Oberti v. Board of Educ., 995 F.2d 1204 (3rd Cir. 1993).
[36] 20 U.S.C. §1415 (f)(3)(E)(ii); 34 C.F.R. §300.513(a)(2).
[37] Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017).
[38] Cerra, 427 F.3d at 195, quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998).
[39] Endrew F.,137 S.Ct. 988, 999.
[40] 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).
[41] 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).
[42] 34 C.F.R. § 300.320(a)(4); 8 N.Y.C.R.R. 200.4(d)(2)(v).
[43] See 8 N.Y.C.R.R. 200.4(e)(7); Application of a Child with a Disability, Appeal No. 08-087.
[44] 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).
[45] NY Educ. Law § 4404(1)(c)).
[46] Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007).
[47] Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006).
[48] Frank G., 459 F.3d at 364-65; Gagliardo, 489 F.3d at 112.
[49] Frank G., 459 F.3d 356, 364; 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).
[50] Frank G., 459 F.3d 356, 364; Gagliardo, 489 F.3d 105, 112.
[51] 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).
[52] Frank G., 459 F.3d at 364; See Gagliardo, 489 F.3d at 112.
[53] Florence Cnty. Sch. Dist. Four v. Carter, 510 U.S. 7, 16, 114 S. Ct. 361 (1993); Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 367 (1985).
[54] Gagliardo, 489 F.3d 105, 112,115; Walczak142 F.3d 119.
[55] See Carter, 510 U.S. at 16.
[56] J.S. v. Scarsdale Union Free Sch. Dist., 826 F.Supp.2d 635, 671 (S.D.N.Y. 2011).
[57] Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246-47 (2009).
[58] Bettinger v. New York City Bd. Of Educ., 2007 WL 4208560, at *6 (S.D.N.Y. Nov. 20, 2007).
[59] D.A. v. New York City Dep’t of Educ., 769 F. Supp. 2d 403, 419-20 (S.D.N.Y. 2011).
[60] E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014).
[61] Carter, 510 U.S. at 16; see also J.S. v. Scarsdale Union Free Sch. Dist., 826 F.Supp.2d 635, 671 (S.D.N.Y. 2011) (“[T]his Court has broad discretion to consider the range of all relevant facts in determining whether and to what extent awarding relief is equitable.”).
[62] 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”).
[63] 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.)
[64] Ex. A-1; Ex. K-2.
[65] Ex. A.-1.
[66] Id; Ex. K-2; DPH Tr. 63.
[67] Ex. K-2. DPH Tr. 63.
[68] Ex. A-2; Ex. K-2.
[69] Ex. K-2; DPH Tr. 62.
[70] Ex. K-5.
[71] Ex. A.
[72] Id.
[73] DPH Tr. 44.
[74] DPH Tr. 47, 50.
[75] Endrew F., 137 S.Ct. at 1002.
[76] DPH Tr. 65-66.
[77] DPH Tr. 66.
[78] Id.
[79] Ex. A-2; DPH Tr. 66-67.
[80] DPH Tr. 67.
[81] Id.
[82] DPH Tr. 68; Ex. B-1.
[83] Ex. A-2.
[84] DPH Tr. 68.
[85] Id; Ex. B.
[86] DPH Tr. 68.
[87] Ex. H-1. The Parent signed the contract on June 14, 2022, however, the Private School signed the contract on September 6, 2022.
[88] Ex. G-1.
[89] Ex. H-1.
[90] Ex. H-1.
[91] Id.
[92] Ex. G-1; Ex. I.
[93] Ex. G-1; Ex. C.
[94] Ex. G-1.
[95] DPH Tr. 71-72.
[96] DPH Tr. 77.
[97] Frank G., 459 F.3d at 365 (citing 20 U.S.C. § 1401(29)).
[98] Ex. D-1.
[99] Id.
[100] Ex. K-2.
[101] Id. The Principal at the Private School has a master’s degree in special education and is certified by New York State in special education and general education. She has a total of 11 years of experience working in special education settings (Ex. K-1).
[102] Ex. K-3.
[103] Id.
[104] Frank G., 459 F.3d at 364.
[105] Ex. K-3.
[106] Id.
[107] Id.
[108] Ex. K-2.
[109] Ex. E; Ex. K-3.
[110] Ex. K-1.
[111] Ex. E.
[112] Ex. F; Ex. K-5.
[113] Ex. K-5.
[114] Id.
[115] Frank G., 459 F.3d at 365 (citing Knable, 238 F.3d at 768).
[116] Weaver v. Millbrook Cent. Sch. Dist., 812 F. Supp. 2d 514, 523 (S.D.N.Y. 2011).
[117] Ex. E-1.
[118] Ex. K-5.
[119] Ex. K-6; Ex. E-1-2.
[120] Ex. K-6; Ex. E-2.
[121] DPH Tr. 69-70.
[122] Ex. K; Ex. E.
[123] Ex. K-7.
[124] Id.
[125] Ex. E-2.
[126] Id.
[127] Id.
[128] Ex. E-3.
[129] Id.
[130] Ex. K-6.
[131] Ex. E-3.
[132] Frank G., 459 F.3d at 364.
[133] Ex. A; Ex. B; DPH Tr. 62-72.
[134] M.H. v. N.Y.C. Dep’t of Educ., 685 F.3d 217, 254 (2d Cir. 2012).
[135] Ex. A; Ex. B; DPH Tr. 62-72.
[136] 34 C.F.R. § 300.148(d)(1)(ii); Ex. B.
[137] DPH Tr. 68.
[138] DPH Tr. 77-78.
[139] DPH Tr. 84-90.
[140] Application of a Student with a Disability, Appeal No. 23-133 discussing Mueller v. Allen, 463 U.S. 388 (1983), Witters v. Washington Department of Services for the Blind, 474 U.S. 481, 489 (1986), Zobrest v. Catalina Foothills School District, 509 U.S. 1, 13-14 (1993), Agostini v. Felton, 521 U.S. 203, 235 (1997), Mitchell v. Helms, 530 U.S. 793, 829-30 (2000), Zelman v. Simmons-Harris, 536 U.S. 639, 662-63 (2002), Trinity Lutheran Church of Columbia, Inc. v Comer, 582 U.S. 449, 464 (2017), Espinoza v Montana Dept. of Revenue, 591 U.S. _, 140 S. Ct. 2246 (2020), Carson as next friend of O. C. v Makin, 596 U.S. ___, 142 S. Ct. 1987 (2022), and Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2428 (2022).
[141] Application of a Student with a Disability, Appeal No. 23-133.
[142] Id.
[143] The Department of Education made one payment of $11,086.67 on October 2, 2023, which is factored into the calculation of the remaining balance of $76,113.33 (See Ex. G-1).