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FINDINGS OF FACT AND DECISION
Case Number: 247813
Student’s Name: Redacted
School District: Service District
Impartial Hearing Officer: Michelle S. Babbitt
Date of Filing: 4.27.23
Hearing Requested by: Parent
Date of Hearing: 7.13.23
Record Close Date: 9.21.23
Date of Post Hearing Written Summations: 8.30.23
NAMES AND TITLES OF PERSONS WHO APPEARED ON 7.13.2023:
For the Student:
Redacted, Esq. (hereinafter referred to as “Parent’s representative”) Redacted, Esq. (for observation only) Redacted, Director of Academic Support, Private School (hereinafter referred to as Witness #1) Redacted, Parent (hereinafter referred to as “Witness #2”)
For the Department of Education (“DOE”): Redacted, Consultant Impartial Hearing Representative for the DOE (hereinafter referred to as “District’s representative”)
Date of Decision: 9.28.23
BACKGROUND AND PROCEDURAL HISTORY
Petitioner filed a Due Process Complaint on 4.27.23 against the New York City Department of Education (“NYC DOE” or “DOE” or “District”) pursuant to the Individuals with Disabilities Education Act (“IDEA”). I was appointed as the impartial hearing officer on 5.1.23. I held a Prehearing Conference (“PHC”) in this matter on 6.6.23. The District representative who filed a Notice of Appearance did not appear at the PHC, and the individual appearing stated that the District is still investigating the case. Therefore, I directed that the DOE shall advise the Parent and this tribunal of its position with respect to the allegations and requested relief in the DPC by sending an email to both the Parent and this tribunal on or before the close of business (5:00 p.m.) on 6.14.23. DOE was also directed to state if they would be making any pre-hearing motions. The parties selected 6.27.23 from 12:00 p.m. - 4:00 p.m. for a hearing on the merits (IHO Exhibit 1). The matter was subsequently adjourned to 7.13.23.
Participating in the hearing were Parent’s representative and the District’s representative.
HEARING
At the beginning of the 7.13.23 hearing, I confirmed the District’s position. The District stated they were not conceding Prong I but were resting on the documents alone to support the provision of a free and appropriate public education (“FAPE”) for the Student. The District stated that the Prong III equities are in favor of the DOE. The District did not present any witnesses to testify on their behalf. The District representative made a brief opening statement. (Tr. 7-11)[1]. The District stated that they could meet their Prong I burden through documents alone and I directed that both parties would need to address the issue in their closing memorandum (Tr. 7-8, 12). The Parent made a brief opening statement (Tr. 11-12).
The District sought to introduce Exhibits 1-8 into evidence, which exhibits included the Individualized Education Program (“IEP”) (Exhibit 1) and the Prior Written Notice (“PWN”) (which speaks to placement) (Exhibit 8) for the 2022-2023 school year. The Parent had no objection to the admission of the documents into evidence (Tr.12-14). Through questioning from this tribunal, it was ascertained that the IEP in question only covered part of the 2022-2023 school year, through 10.4.22. The CSE did not convene and hold an IEP meeting for the 2022-2023 school year and there was no IEP in place from 10.5.22 through the end of June 2023. The DOE admitted that there was no IEP in effect for approximately 9 months out of the 2022-2023 10-month school year (Tr. 14-16).
Parent sought to admit into evidence Exhibits A-L. There was no objection to the admission of the documents by the District. Exhibits A-L, inclusive, were admitted into evidence (Tr.18-22).
The District did not present a case in chief through witnesses but relied solely on the documents and conceded that they did not provide the Student with FAPE from 10.5.22 forward for the 2022-2023 school year (Tr.14-16, 22-23, 87).
Parent submitted a corrected exhibit list and exhibits on 8.16.23. The parties submitted written summations and memoranda of law on 8.30.23 (IHO Exhibits 2 and 3).
THE PARTIES POSITIONS
The Parent argues:
The DOE failed to develop a timely IEP, PWN, or School Location Letter for purposes of the 2022-2023 school year. The Parent argues that the 10.5.21 IEP did not continue into the 2022-2023 school year (IHO Exhibit 3-4-7, Tr. 11). The Parent submits that the Private School was an appropriate placement for the Student for the 2022-2023 school year (IHO Exhibit 3-8-10).
The District argues that a school district is only required to create an IEP once each year. [
20 U.S.C. § 1414(d)(4)(A); 34 C.F.R. § 300.324 (b)(1); 8 N.Y.C.R.R. § 200.4 (f)], and that the 10.5.21 IEP was the operative IEP for the start of the 2022-2023 school year. It was the operative IEP when the Parent sent their ten-day notice and remained operative through 10.4.22. (Tr.9). The District contends that the 10.5.21.IEP recommended a program that was tailored to the Student’s specific needs: a special class 12:1 with the provision of speech-language therapy, counseling, and occupational therapy. The CSE team recorded meeting minutes (Exhibit 7) wherein they provided details to explain their recommendations. The team had reviewed and considered a counseling progress report (Exhibit 3), an occupational therapy progress report (Exhibit 4), a speech and language report (Exhibit 6), and teachers reports (Exhibit 5) (See PWN 8-2) in arriving at their recommendations for the Student. The related service progress reports set forth goals and his progress that is reflected in the IEP (Tr. 10, IHO Exhibit 3-4).
The District conceded that it did not hold a CSE meeting for the 2022-2023 school year that covered the period 10.5.22 until the end of the school year on June 23 (Tr. 14-16).
FINDINGS OF FACT AND DECISION
After a full review of the record generated at the hearing, I make the following findings of fact and determinations.
Witness #1, Director of Academic Support at the Private School, testified that she works “directly with teachers in order to prepare for appropriate learning based on the speech and language needs of our students. And I collaborate with all teachers, all supervisors, all coaches. And I do see our students on a daily basis” (Tr.26).[2] Witness #1 further testified that she has known the Student since he enrolled at the Private School during the 2019-2020 school year (Tr. 29). The Student’s “homeroom is a class of 11 (audio interference) teacher and an assistant teacher. And his classes for reading, writing, and math are smaller groups of five students and one teacher. Also, I see him in his related service groupings, which once again, is a group no larger than five students” (Tr.33, 43). The Private School’s head teachers have master’s degrees in general education and special education. Assistant teachers at the Private School are enrolled in master’s programs (Tr. 33). When Witness #1 was questioned as to how it was possible to spend half a period (45 minutes) in more than 13 classes each day, together with her tasks of attending IEP meetings, being on the admissions committee and interviewing students and testifying, she responded: “Yes, it is a very complex and time-consuming position.” (Tr. 68-71).
Both speech and language therapy and counseling were administered through pull-out sessions. The Private School’s curriculum superimposes all the language as well as the social development goals within all the Student’s classes. The Student receives counseling and language therapy (Tr. 38-39; See also, P-L).
Two progress reports are sent to the Parent throughout the school year. As of the date of the hearing, which was after 6.16.23, the close of the 2022-2023 school year, the Parent had not yet been sent the second progress report for the Student (Tr. 40-41.64). The Report Card does not offer any narrative description as to the Student’s progress (Tr.65, Exhibit I).
Witness #1 testified that the Student received a multi-sensory approach to teaching in that he was provided with both auditory and written materials formats. Repetition is a key component of teaching (Tr. 44). Singapore Math, administered by the Private School, is a “multisensory, sequential program that moves and utilizes manipulatives that utilize graphic organizers, utilize a -- an approach where students learn to understand and have number sense as well as being able to compute with algorithms, and then also to understand and solve word problems” (Tr.45).
Witness #1 testified that the Student “began the year approximately a 2nd-grade level, and he was ending -- he ended the year fully at a 3rd-grade level (Tr. 42). In math, he started the school year at a 3rd-grade level and progressed, with supports, to a 4th-grade level (Tr.66). The Student’s greatest challenges at the end of the 2022-2023 school year were “in the comprehension area, being able to answer the higher-level why and how and inferential questions and then to be able to go back to the text and determine the information (audio interference) will support his responses” (Tr.43).
All staff at the Private School receive “professional development” (Tr. 45-46). There are parent-teacher conferences twice during the year (Tr. 47, 53). The Private School groups students by their functional levels (Tr. 49-50). The Student received extra time, and when needed, he received one-to-one support (Tr. 51, 57).
Witness #1 opined that the Private School is an appropriate fit for the Student because it is “able to address the complexity of both his academic needs as well as his social development needs and his language development needs” (Tr.48,53). Executive functioning is an area of challenge to the Student, and he is provided with multistep directions. He is also provided with graphic organizers and a checklist. Information is provided orally and then the Student has access to supports so that he can follow directions (Tr.50). The Student has problems with flexibility in social relationships (Tr.56-57)
The Student does not receive OT (Tr.57). Speech and language therapy is administered in one 45-minute pull-out session per week in a small group (Tr.59-60, 62). The Student receives counseling one time each week for 45 minutes in a small group (Tr.63).
Parent testified that she sent the 10-day notice to the District, but documentary evidence shows that acknowledgment of receipt of the 10-day notice was sent to Parent’s counsel’s office (Tr.79, Exhibit B-2). The cancellation provision in the enrollment contract had to be exercised on or before 9.1.22 to void the contract (Tr.80-81, Exhibit D-2). Parent’s testimony showed she was under the mistaken belief that the IEP dated 10.5.21 was not effective for one year, and thus did not extend into the 2022-2023 school year (Tr.78,80). Parent’s testimony on the Student’s progress was vague and didn’t offer any insight into the Student: “So I think academically he has continued to, you know, make progress from where he starts at the beginning in -- in learning, so academic learning. And I think socially, while -- while that remains a challenge, he's also been working on developing friendships and, you know, the language skills to, you know, make those friendships productive and… (Tr.83).
Parent testified that the Student takes the DOE school bus to and from the Private School (Tr. 84)
Considering the foregoing, and as more fully discussed below, I find that a) the DOE did not offer the Student a FAPE for the 2022-2023 school year; b) the Private School offers the Student specially designed instruction sufficient to meet the Student’s needs and c) the equities do not wholly favor the Parent.
Burden
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. [See NYS Educ. Law § 4404(1)(c); R.E. v. N.Y.C. Dept. of Educ., 694 F.3d 167, 184-185 (2d Cir. 2012), C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 835-836 (2d Cir. 2014)].
Prong I
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”). [See 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. [See Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982)]. 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, 137 S.Ct. 988, 999 (2017)].
In general, the IDEA and State regulations require that a district must have an IEP in effect at the beginning of each school year for each child in its jurisdiction with a disability [34 CFR 300.323(a); 8 NYCRR 200.4 (e)(1)(ii); Cerra, 427 F.3d at 194; Tarlowe, 2008 WL 2736027, at *6].
An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance [see 34 CFR 300.320(a)(1) ; 8 NYCRR 200.4(d)(2)(i)], establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum [see 34 CFR 300.320(a)(2)(i), (2)(i)(A) ; 8 NYCRR 200.4(d)(2)(iii)], and provides for the use of appropriate special education services [see 34 CFR 300.320(a)(4); 8 NYCRR 200.4(d)(2)(v)].
As to Prong I of the Burlington/Carter standard, the DOE argues that the DOE met its substantive obligations under the IDEA for the 2022-2023 school year. The IEP created for the year at issue recommended a program that was tailored to the Student’s specific needs. The 10.5.21 IEP recommended that the Student be placed in a ten-month program in a special class with a staffing ratio of 12:1, with the receipt of speech-language therapy, counseling, and occupational therapy (Exhibit 1-23-24). The IEP details the Student’s present levels of performance and individual needs in the following areas: (1) academic achievement, functional performance, and learning characteristics, specifically (a) writing, (b)math, (c) decoding; (d) reading fluency functional level (e) comprehension functional level), (f) grammar and syntax); (2) social development; (3) physical development; and (4) management needs (Exhibit I-1-10). There are 11 goals addressing ELA/reading, ELA/writing, mathematics, counseling, speech and language therapy, and occupational therapy (Exhibit 1-11-23). The Parent did not assert, either in its 10-day notice or the DPC (Exhibits A and B), that the IEP recommendations were inappropriate and unable to address the student’s needs. No evidence of such was adduced at the hearing.
The documentary evidence shows that the DOE provided the student with an appropriate IEP. In making this determination, I am mindful that school districts are not required to “maximize” the potential of students with disabilities [Rowley, 458 U.S. at 189, 199; Grim v. Rhinebeck Central School Dist., 346 F.3d 377, 379 (2d Cir. 1998)]; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998)] but must provide “an IEP that is ‘likely to produce progress, not regression,’ and ... affords the student with an opportunity greater than mere ‘trivial advancement.’” [Cerra v. Pawling Cent. Sch. District, 427 F.3d 186, 195, quoting Walczak v. Florida Union Free Sch. Dist, 142 F.3d 119,130]. The IEP must have been “reasonably calculated to provide some ‘meaningful’ benefit.” [Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see Rowley, 458 U.S. at 192].
The team took meeting minutes (Exhibit 7), where they provided details to explain their recommendations. In making their recommendation, the team considered (i) counseling progress report (Exhibit 3), (ii) occupational therapy progress report (Exhibit 4), (iii) speech and language report (Exhibit 6), and (iv) teachers reports from the Student’s Private School (Exhibit 5 and 8-2). The related service progress reports provide set forth goals and his progress that is reflected in the IEP. A District is not required to conduct its own evaluations in developing an IEP and recommending an appropriate program but may rely on information obtained from the Student’s private school personnel, including sufficiently comprehensive progress reports, in formulating the IEP. [G.W. v. Rye City Sch. Dist., 2013 WL 1286154, at *23 (S.D.N.Y. March 29, 2013), aff'd 554 Fed. App'x 56 (2d Cir. Feb. 11, 2014); S.F., 2011 WL 5419847, at *10].
The IDEA requires a CSE to include the following members: the parent(s); one regular education teacher of the student (if the student was, or may be, participating in the regular education environment); one special education teacher of the student or, where appropriate, not less than one special education provider of the student; a district representative; an individual capable of interpreting instructional implications of evaluation results; at the discretion of the parent or district, other persons having knowledge or special expertise regarding the student; and if appropriate, the student. [20 U.S.C. § 1414(d)(1)(B); Educ. Law § 4402(b)(1)(a); and 34 CFR 300.321(a); 8 NYCRR 200.3(a)(1)].
Based on the attendance page (Exhibit I-30), it appears that the CSE team was properly constituted. No objections were raised by the Parent as to the composition of the CSE team.
The District solely relies on the documents offered by the Parent to demonstrate that it provided the Student with FAPE. Although the bare presentation of its case is not encouraged, the District can still meet its burden without witness testimony. [Application of a Student with a Disability, SRO No. 19-054 34 CFR 300.503(a); 8 NYCRR 200.5(a); see also L.O. v. New York City Dep't of Educ., 822 F.3d 95, 110- 11 (2d Cir. 2016)]. The DOE can also meet its burden on documents alone. [See Application of a Student with a Disability, Appeal No. 23-005; Application of a Student with a Disability No. 19-054 (pp 16-17); and Application of a Student with a Disability No. 23-054, Application of a Student with a Disability. No.23-090].
However, my analysis of whether the District provided FAPE does not end with a determination as to the appropriateness of the IEP. Implicit in a District's obligation to implement an IEP is the requirement that, at some point prior to or contemporaneous with the date of initiation of services under an IEP, a district must notify parents in a reasonable fashion of the bricks and mortar location of the special education program and related services in a student's IEP [see T.C. v. New York City Dep't of Educ., 2016 WL 1261137, at *9 (S.D.N.Y. Mar. 30, 2016) ("a parent must necessarily receive some form of notice of the school placement by the start of the school year"); Tarlowe v. New York City Bd. Of Educ., 2008 WL 2736027, at *6 (a district's delay does not violate the IDEA so long as a public-school site is found before the beginning of the school year)]. While such information need not be communicated to the parents by any particular means to comply with federal and State regulations, it nonetheless follows that it must be shared with the parent before the student’s IEP may be implemented. Although a PWN was sent for the 2021-2022 school year there is no evidence that the District notified the Parent, whose child was in a Private School, as to where his placement would be for the 2022-2023 school year starting in September. A failure to provide a copy of the IEP, the prior written notice, or other educational records is a procedural violation that does not necessarily rise to the level of a denial of a FAPE [20 U.S.C. § 1415(f)(3)(E)(ii); 34 CFR 300.513(a)(2); 8 NYCRR 200.5(j)(4)(ii)]. For example, evidence that the parent attended the CSE and had awareness of the programming recommended by the CSE may defeat a claim that such a procedural violation impeded a student's education [Mr. P v. W. Hartford Bd. of Educ., 885 F.3d 735, 754-55 (2d Cir. 2018) (finding no denial of a FAPE where the parents attended every meeting "and did not allege that they were unaware of any programming selected" for the student); see also Cerra, 427 F.3d at 193-94; J.G. v. Briarcliff Manor Union Free School Dist., 682 F. Supp. 2d 387, 396 (S.D.N.Y. 2010)]. Here, however, the lack of a school location letter resulted in a denial of a FAPE.
Based on the above, there is insufficient evidence in the hearing record to show that the District met its obligation to notify the parent in some form regarding where or how the Student could access his IEP services. This constitutes a procedural error, which as stated above, does not automatically rise to the level of a deprivation of FAPE. In this case, the Parent wrote to the District twice, indicating it did not know where the Student was to attend school at the beginning of the 2022-2023 school year. The District did not respond. Under the circumstances presented, it resulted in the Parent being provided with no information as to how or where the recommended special education program would have been implemented and, therefore, resulted in a denial of FAPE [see F.B. v. N.Y. City Dep’t of Educ., 132 F. Supp. 3d 522, 538-45 (S.D.N.Y. 2015); V.S. v N.Y.C. Dep’t of Educ., 25 F. Supp. 3d 295, 299-301 (E.D.N.Y. 2014)].
Prong II
A private school placement must be "proper under the Act." [Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12, 15 (1993); see also Sch. Comm. Of Burlington v. Dept. of Educ., 471 U.S. 359, 370 (1985)]. This means that the private school must offer an educational program that meets the student's special education needs. [See Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112, 115 (2d Cir. 2007); Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998)].
Parents seeking tuition reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.” [Gagliardo, 489 F.3d 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. [Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006)].
Parents need not show that the placement provides every special service necessary to maximize the student's potential. [See Frank G., 459 F.3d at 364-65]. When determining whether a unilateral placement is appropriate, “[u]ltimately, the issue turns on” whether the placement is “reasonably calculated to enable the child to receive educational benefits.” [Frank G., 459 F.3d at 364; see also Gagliardo, 489 F.3d at 115]. A private placement is appropriate if it provides instruction specially designed to meet a student’s unique needs. [See 20 U.S.C. § 1401(29); Educ. Law § 4401(1); 34 CFR 300.39(a)(1); 8 NYCRR 200.1(ww); Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 (2d Cir. 2014)].
The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement. No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefits, 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. [See Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65].
Private School was an appropriate educational program for the Student
Although the evidence was not well-developed by Parent at the hearing or in its written posthearing brief, I find that the Private School addresses the Student’s challenges with the following:
• Language and social development goals embedded throughout the Student’s program (Tr.38-39)
• Counseling and language therapy (Tr. 38-39)
• Multi-sensory approach to teaching (Tr.41-44)
• One-to-one support as needed (Tr.57)
• Small, related service groupings of five students (Tr. 33, 43)
• classroom of 8 to 12 students (Exhibit E-1)
• curriculum includes research-based, explicit instruction for academic skills, social studies, science, art, music, physical education, and study skills (Exhibit E-1)
• multidisciplinary staff consisting of teachers with master’s degrees in special education and specialists in physical education, computers, psychology, speech pathology, occupational therapy, music, and art (Exhibit E-1).
The Student progressed one grade level in academic subjects (Tr. 42,66).
The Private School was an appropriate educational placement for the Student to make meaningful progress.
Equities
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.” [Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246-47, 129 S. Ct. 2484, 174 L. Ed. 2d 168 (2009)]. In making that equitable determination, a hearing officer may consider many factors, including, inter alia, whether a parent’s unilateral withdrawal of her child from the public school was justified, whether (1) the parent provided the Department with adequate notice of the withdrawal, (2) the amount of private-school tuition was reasonable, (3) the parent should have availed herself of need-based scholarships or other financial aid from the private school, and (4) there was any fraud or collusion in generating (or inflating) the tuition to be charged to the Department, or the arrangement with the school was fraudulent or collusive in any other respect. [See E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014)].
Any of the CSE's alleged shortcomings do not obviate Parent’s own responsibilities in the IEP process. [Erde v. Banks, No.21-CV-9285, 2022 U.S. Dist. LEXIS 232797, 2022 WL 18461297, at*7 (S.D.N.Y. 12.28.22) report and recommendation adopted, No. 21-CV-9285, 2023 U.S. Dist. LEXIS 12179, 2023 WL 373156 (S.D.N.Y. Jan. 24, 2023)].
As to equitable considerations, the 8.25.22 ten-day notice of unilateral placement failed to identify the issues and areas of the program recommended in the operative IEP dated 10.5.21 that Parent objected to, and why the Parent believed that the District program could not meet the Student's needs. There is no mention of the operative IEP in effect at the time of Parent’s decision to unilaterally place the student in the Private School. The purpose of the ten-day letter is to provide information to the District that would allow the district to repair any failures in the program and, therefore, the failure to identify the reasons the Parent believed the program was inappropriate is an equitable consideration that impacts any award. The statute and regulations do not affirmatively require such notice or bar parents from enrolling their child in another school without such notice, but they establish a powerful incentive to give such notice by providing that reimbursement may be "reduced or denied" if parents fail to follow this procedure. [See 20 U.S.C. § 1412(a)(10)(C)(iii)(I) (absent prior notice, reimbursement may be reduced or denied); 34 C.F.R. § 300.148(d) (same); see also Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 240-41, 129 S.Ct. 2484, 174 L.Ed.2d 168 (2009) (discussing circumstances under which court may reduce or deny reimbursement under 20 U.S.C. § 1412); M.C. ex rel. Mrs. C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 (2d Cir. 2000), ("[C]ourts have held uniformly that reimbursement is barred where parents unilaterally arrange for private educational services without ever notifying the school board of their dissatisfaction with their child's IEP")].
Here, the hearing record demonstrates that the parent failed to provide the District with notice of her concerns with the operative IEP dated 10.5.22. [20 U.S.C. § 1412 (a)(10)(C)(iii)(I); see also 34 CFR 300.148(d)(1)]. The Second Circuit has made clear that parents are entitled to rely on an IEP "as written when they decide to [unliterally] place" their child before the beginning of a school year [Bd. of Educ. of Yorktown Cent. Sch. Dist. v. C.S., 990 F.3d 152, 173 (2d Cir. 2021); see R.E., 694 F.3d at 187-88 ("At the time the parents must decide whether to make a unilateral placement ... [t]he appropriate inquiry is into the nature of the program actually offered.")]. In line with the prospective analysis required by the Second Circuit, the October 2021 IEP was the operative IEP at the time of the Parent’s placement decision and the District was not required to defend any programs developed after the student began attending the unilateral placement [see Bd. of Educ. of Yorktown Cent. Sch. Dist., 990 F.3d at 173; R.E., 694 F.3d at 187-88]. If the Parent wanted the CSE to reconvene prior to the projected annual review date so that they could have a CSE review the Student's progress during the course of the 2021-2022 school year prior to making the decision to place the student at the Private School, the Parent could have notified the District that they believed the Student's program as recommended in the October 2021 was no longer appropriate for the Student and they could have requested that the CSE reconvene (8 NYCRR 200.4[e][4]). However, there is no evidence in the hearing record to suggest that the Parent requested that the CSE reconvene prior to the projected annual review date because the Student’s placement was no longer appropriate.
Rather, by letter dated 8.25.22, the Parent merely stated that there was no IEP for the 2022-2023 school year: “We are writing to advise you that, to date, with the start of the 2022-2023 school year just weeks away, we have not had an IEP meeting, nor have we received a copy of an IEP for our son, [the Student]. We also have not received a placement school site recommendation for [the Student]” (Exhibit B-1).
The ten-day notice apparently was transmitted by the Parent’s attorneys (Exhibit B-2).
I note that the Parents both signed the enrollment contract with the Private School on 2.1.22, almost seven (7) months prior to sending the 8.25.23 letter. The Student had been in the Private School since 2019. Such signature in 2.1.22 shows a determination early on that the Parent wished for the Student to remain at the Private School. Parent testified that they had the right to cancel the enrollment contract, but by the terms of the enrollment contract they were obligated to have done so prior to 9.1.23. This cancellation period was within the ten-business day window when the District could have taken remedial action. Accordingly, the ten-day business period ran on 9.8.23, almost one week after the permissible cancellation date, and the first day of the school year at both public school and the Private School (Exhibit F1).
The Parent's ten-day notice to the District simply did not provide the District with any information to determine why the Parent rejected the 10.5.21 IEP. Parent’s misunderstanding, and that of her counsel as well, as to the date the IEP remained in effect does not trump applicable law. Counsel’s suggestion that it was District’s responsibility to explain the law to the Parent is misplaced (Tr.80).
Notably, neither in the 10-day notice nor the DPC did the Parent express that the Student’s program was inappropriate, nor did they request a meeting or reevaluation. [3]
Nowhere in their closing memorandum did the Parent’s representative take issue with any component of the 10.5.21 IEP, the operative IEP at the beginning of the 2022-2023 school year. Nor did the parent cite either case law or a regulation that states that an IEP is not in effect for one year (Exhibit 3). The DPC has no allegations challenging the 10.5.21 IEP, and nowhere in the 7-page document does the Parent state what it believes are the shortcomings of the 10.5.21 IEP (Exhibit A). The 10-day notice letter dated 8.25.22 does not take issue with any component of the 10.5.21 IEP but rather states that since there has been no IEP meeting nor placement for the 2022-2023 school year, the Parent will be sending the Student to the Private School (Exhibit B). At the hearing, the Parent did not identify any deficiencies with the 10.5.21, nor did it do so in its written closing summation (IHO Exhibit 3).
Reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement prior to their removal of the student from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" [20 U.S.C. § 1412(a)(10)(C)(iii)(I); see also 34 CFR 300.148(d)(1)]. This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools" [Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 (1st Cir. 2004)]. Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision [Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 (1st Cir. 2004); Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 (6th Cir. 2003); Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 (1st Cir. 2002); see Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68]. There is support for denying the relief in its entirety.
Based on the foregoing, the equitable considerations do not weigh in favor of full tuition reimbursement. There is support for denying the relief in its entirety. Had the parents notified the District of their rejection of the IEP and intent to unilaterally place the Student in an appropriate manner, the District may have offered to reconvene the CSE at a time when the Student's program could have been effectively amended to address the Parents' concerns before the commencement of the 2022-2023 school year. By failing to communicate with the District in the manner contemplated by the IDEA, the Parent deprived the District of the opportunity, before the student was removed "to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools" [Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 (1st Cir. 2004)].
Based on the foregoing (the failure to provide an appropriate ten-day notice and the inapplicability of the cancellation provision within the particulars of the relevant factual scenario), the equitable considerations do not weigh in favor of full tuition reimbursement. Accordingly, considering the lack of an adequate notice 10 business days prior to the start of the ten-month public-school year (9.8.23) (and prior to the Student starting at the Private School), and a cancellation provision without meaning (evidencing an intention of the Parent to keep the Student in the Private School he had attended since 2019), I will exercise my discretion under the circumstances, not to deny relief outright as is supportable by the facts, but to reduce reimbursement by 15 percent of the tuition at the Private School. Accordingly, the Parent's requested reimbursement for $71,500.00 for the Private School for the 10-month 2022-2023 school year will be reduced by 15 per cent ($10,725.00) [See, Melendez v. Porter, 2023 U.S. Distr. 85107 (E.D.N.Y. 5.15.23) (reduction of 33% of tuition) SRO 23-056 (reduction of 15% of tuition].
The Parent requested reimbursement for transportation costs for the Student but provided no evidence on this issue (IHO Exhibit 3-12). Notably, the Parent testified that the Student is receiving transportation to the school by a DOE school bus (Tr. 84) Accordingly, the request is denied.
The undersigned has reviewed the Parent’s remaining contentions and finds them to be either unnecessary to this decision, without merit, beyond my jurisdiction, too vague to be of use, or without sufficient basis in the record for a finding and award of relief. Accordingly, any relief not specifically discussed in this decision is denied, and all the Parent’s remaining claims not discussed herein are dismissed.
ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:
(1) Parent’s claim for tuition funding for the Private School for the 10-month 2022-2023 school year for the Student’s unilateral placement is GRANTED up to the amount of $60,775.00 and the District shall reimburse Parent in the amount of $60,775.00 for said tuition payments.
Dated: September 28, 2023
_____________________
Michelle S. Babbitt
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.
DISTRICT EVIDENCE
| Exhibit | Title | Date | Pages |
|---|---|---|---|
| 1 | Individualized Education Program | 10.5.21 | 31 |
| 2 | Neuropsychological Evaluation | 1.31.19 | 18 |
| 3 | Counseling progress Report | Spring 2021 | 2 |
| 4 | OT Progress Report | Spring 2021 | 2 |
| 5 | Teacher report | 6.1.21 | 5 |
| 6 | Speech language report | 6.16.21 | 4 |
| 7 | Meeting Minutes | 10.5.21 | 5 |
| 8 | Prior Written Notice | 10.14.21 | 6 |
PARENT EVIDENCE
| Exhibit | Title | Date | Pages |
|---|---|---|---|
| A | Due Process Complaint and email confirmation | 4.27.23 | 7 |
| B | Ten Day letter with email confirmation | 8.25.22 | 2 |
| C | No IEP meeting Letter to CSE by parent | 8.18.22 | 1 |
| D | Enrollment Contract by Redacted | 22-23 | 4 |
| E | School Program by Redacted | 22-23 | 1 |
| F | Tuition Affidavit by The Redacted | 6.16.23. | 2 |
| G | Schedule by The Redacted | 22-23 | 3 |
| H | Attendance Record by The Redacted | 22-23 | 1 |
| I | Semester 1 Report Card by The Redacted | 22-23 | 14 |
| J | Educational Progress Report by The Redacted | 3.9.23 | 7 |
| K | Speech Progress Report by The Redacted | 3.23 | 3 |
| L | Counseling Progress Report by The Redacted | 22-23 | 2 |
IHO EXHIBITS
| Exhibit | Title | Date | Pages |
|---|---|---|---|
| 1 | Prehearing Conference Summary and Order | 6.6.23 | 10 |
| 2 | Closing Brief of the DOE | 8.30.23 | 8 |
| 3 | Petitioner’s Post-Hearing Brief | Undated (submitted 8.30.23) | 12 |
| 4 | Email exchange between IHO and parties | 7.14.23-8.9.23 | 4 |
APPENDIX
| Information | Term Used In FOFD |
|---|---|
| Redacted | Student |
| Redacted | Parent Attorney/Representative |
| Redacted. | District Attorney/Representative |
| Redacted | Private School |
| Redacted, Director of Academic Support at the Private School | Witness # 1 |
| Redacted, Parent | Witness # 2 |
Footnotes
[1] Reference is to the page from the transcript of the 7.13.23 hearing where the testimony may be found.
[2] Witness #1 did not appear on video, contrary to the directive in the PHC Summary and Order (IHO Exhibit 1-2). As I stated on the record, it is difficult to assess the credibility of a witness when there is no visual. I do expect that professionals have working technology and make allowances for those without the resource (Tr.24-25). That is not the case for this witness. A significant portion of Witness #1’s testimony had audio problems and could not be heard.
[3] On 7.14.23 I sent an email to the parties asking: “Good evening: please advise if the IEP marked as Exhibit #1 was challenged in the prior school year (2021-2022) through a DPC. Since Exhibit 1 covers part of a prior school year I’d like to know if a determination was made as to whether it was an appropriate educational program for the Student. Neither side addressed this during the hearing and clearly if an issue has been decided, in whole or in part, it should not be placed before this tribunal. Thank you.” The parties responded that there was no filing for the 2021-2022 school year. (IHO Exhibit 4).