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CASE NUMBER: 599384 - NYC: 248097
FINDINGS OF FACT AND DECISION
Case Number: 248097
Student’s Name: REDACTED (“Student”)
Date of Birth: REDACTED
School District: REDACTED
Hearing Requested by: REDACTED (“Parents”)
Request Date/Date Complaint Filed: May 9, 2023
Date(s) of Hearing: August 16, 2023
September 20, 2023
Actual Record Closed Date: October 16, 2023
Date of Decision: October 20, 2023
Time Sensitive No
Hearing Officer: Robin Levin, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 16, 2023
For the Student:
REDACTED (“Parents’ Attorney”)
REDACTED (“Mother or Parent 1”)
For the Department of Education:
REDACTED (“DOE Attorney”)
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 20, 2023
For the Student:
REDACTED (“Parents’ Attorney”)
REDACTED (“Educational Director at the Private School”)
For the Department of Education:
REDACTED (“DOE Representative”)
INTRODUCTION
This is a decision rendered after a due process hearing (“DPH” or “hearing”) pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1400 et seq., and its implementing regulations, 34 C.F.R. §300 et seq., the New York State Education Law, Educ. Law Article 89 §4404 et seq., and its implementing regulations, 8 NYCRR §200.5 et seq.[1] This case concerns Student, an REDACTED -year-old, who is classified as a student with Autism.[2] For the 2022-2023 school year, the Student attended a private school (“Private School”). [3]
On May 9, 2023, the Parents, through their attorney, filed a Due Process Complaint (“DPC”) against the New York City Department of Education (“DOE” or District”).[4] In the DPC, the Parents alleged that the DOE failed to offer the Student a Free Appropriate Public Education (“FAPE”) for the 2022-2023 school year.[5] The Parents alleged that the Committee on Special Education (“CSE”) convened on January 13, 2022 to develop an Individualized Education Program (“IEP”) for the Student.[6] The CSE recommended a 6:1:1 special class in a District 75 school for four periods per day with related services including occupational therapy, physical therapy, speech-language therapy, and parent counseling and training.[7] The Parents alleged that the recommendations of the CSE are inappropriate to meet the Student’s needs.[8] The Parents argued that the Student requires a self-contained class for the entire school day, including 1:1 support and the use of Applied Behavior Analysis (“ABA”) methodology and interventions. [9]
By way of relief, the Parents seek an award of direct tuition funding for the Student’s attendance at the Private School for the 12-month 2022-2023 school year.[10] The Parents allege that the equities support their claim for direct tuition funding for the school year at issue since the Parents fully cooperated with the CSE and properly served a Ten-Day Notice.[11] The Parents argue that the Private School was appropriate for the Student for the 2022-2023 school year. [12]
As discussed below, I find that the DOE denied the Student a FAPE for the 2022-2023 school year. I find that the Private School was an appropriate placement for the Student. I find that the equities support the Parents’ request for direct tuition funding.
PROCEDURAL HISTORY
On May 10, 2023, I was appointed as the Impartial Hearing Officer (“IHO”). On June 21, 2023, the parties appeared via videoconferencing for a pre-hearing conference (“PHC”). At that time, the DOE Attorney requested additional time to determine whether the case can be recommended for settlement, so on consent on the parties the PHC was adjourned to July 6, 2023. [13] On July 6, 2023, the parties appeared for a continued PHC, and the case was scheduled for a Due Process Hearing (“DPH” or “hearing”).[14] The parties made a joint request to extend the compliance date, which I granted. [15]
A virtual DPH was held on August 16, 2023 and September 20, 2023.[16] It was a closed hearing. On August 16, 2023, Parent 1 was present and represented by Parents’ Attorney. The DOE Attorney was present. The DOE Attorney sought the admission of three exhibits into the hearing record without objection, which I admitted.[17] The Parent’s Attorney sought the admission of ten exhibits into the hearing record without objection, which I admitted.[18] The DOE Attorney waived her opening statement and did not call any witnesses at the hearing.[19] The Parents’ Attorney gave an opening statement and called Parent 1 to testify.[20] The DOE Attorney did not wish to cross-examine Parent 1.[21] The hearing was adjourned due to witness availability and the parties made a joint request to extend the compliance date, which I granted. [22]
On September 20, 2023, the hearing continued.[23] Parent 1 was not present. The Parents were represented by the Parents’ Attorney. The DOE Representative was present. The Parents’ Attorney called the Educational Director at the Private School to testify, and on consent of the DOE, the affidavit of the Educational Director was admitted into the hearing record.[24] The Educational Director at the Private School affirmed the contents of her affidavit and was cross-examined by the DOE Representative.[25] The Parents rested, the parties gave closing statements, and I granted a joint request to extend the compliance date.[26] The record was closed on October 16, 2023 after receipt and review of the hearing transcript.
FINDINGS OF FACT
After a full review of the hearing record, I make the following findings of fact and determinations.
The Student is currently REDACTED years old and is classified as a student with Autism by the DOE’s CSE.[27] The Student is described by his teacher as a happy and sweet student who is a pleasure to have in the class.[28] For the last three school years, the Student has attended the Private School.[29] The Student is significantly delayed in speech and communication, sensory processing and motor skills, academics, and has attentional and behavioral difficulties.[30] He struggles to communication with his teachers and peers, exhibits maladaptive behaviors when upset, and requires assistance with many daily living skills.[31]
According to Parent 1’s testimony, which I find credible, the DOE convened a meeting of the CSE in January of 2022 to develop an IEP for the Student for the 2022-23 school year.[32] Prior to the IEP meeting, the DOE did not conduct updated evaluations and the last psychoeducational evaluation for the Student occurred in February of 2017.[33] The CSE relied on the teacher progress report regarding the Student and at the conclusion of the IEP meeting, the CSE recommended a 6:1:1 special class in a District 75 on a 12-month basis for four subjects per day with related services including individual occupational therapy three times per week for thirty-minutes sessions, individual physical therapy twice per week for thirty-minute sessions, speech-language therapy five times per week for thirty-minute sessions, group counseling twice per week for thirty minutes, and parent counseling and training.[34] Parent 1 participated in the IEP meeting along with the Student’s teacher and both of them disagreed with the recommendation.[35] Parent 1 expressed that the Student needed a full day special education program, and a 6:1:1 classroom setting for four periods per day “would not provide enough support to meet his academic, social/emotional and behavioral needs.”[36] Parent 1 and the Student’s teacher explained to the CSE that the Student “requires a considerable amount of 1:1 instruction and ABA support to make progress, and being in a classroom with only two teachers and six student would not provide him with the individualized instruction and attention the Student requires.[37] In addition, Parent 1 did not believe the IEP as recommended by the CSE appropriately addressed the Student’s sensory and behavioral needs. [38]
A few months after the IEP meeting, on May 26, 2022, Parent 1 received Prior Written Notice (“PWN”) from the District and a School Location Letter recommending the Public School.[39] Parent 1 visited the Public School and during the visit, she was informed that the Public School only had two classes, one class with twelve students and one class with nine students. [40] Parent 1 became concerned about the Public School’s ability to implement the Student’s IEP.[41] Moreover, while touring the facility, Parent 1 was informed that the Public School did not have a sensory gym, did not provide ABA instruction or support, and did provide specific 1:1 instruction. [42]
Thereafter, on June 17, 2022, the Parents, through the Parents’ Attorney wrote to the CSE expressing the Parents’ concerns regarding the program and placement.[43] This letter (“Ten-Day Notice”) also informed the DOE of the Parents’ intent to enroll the Student in the Private School for the 2022-2023 school year.[44] According to Parent 1’s testimony, the DOE did not respond. [45]
On June 24, 2022, Parent 1 enrolled the Student in the Private School and signed an enrollment contract for the Student to attend on a 12-month basis from July 5, 2022 to June 29, 2023.[46] The total cost of the Student’s tuition for the 2022-2023 12-month school year was $125,000.[47] Parent 1 testified that her income for 2022 was $15,624 and thus, she is unable to pay the tuition directly to the Private School.[48] Therefore, the remaining balance owed to the Private School is $125,000.[49] During the 2022-2023 12-month school year, the Student attended the Private School regularly and was only absent a reasonable number of days. [50]
The Private School “is designed for students with are diagnosed with Autism and/or have language, social skills development, and academic needs.”[51] The Private School uses ABA methodology and combines a common core academic curriculum with a special education curriculum, instructing students in math, reading, writing, science, history, social studies while also focusing class time on music therapy, life skills, art therapy, social skills, and gym instruction.[52] Students at the Private School receive 1:1 support and instruction as they “work out of their ABA binders” towards meeting their long-term goals. [53]
For the 2022-2023 school year, the Private School created individualized goals for the Student after conducting the “Assessment of Basic Language and Learning Skills.”[54] By determining the Student’s current skill levels and deficits, the Private School was able to group the Student in a class with nine other students of similar age, social functioning, and academic level with one lead teacher and six assistant teachers.[55] The Student’s head teacher has a master’s degree in both education and special education, and the assistant teachers are trained in ABA methodology and either have a bachelor’s degree, are currently enrolled in an undergraduate program, or have experience working with individuals with special needs.[56] The Student’s class schedule consisted of several periods per day of 1:1 instruction and classes in English Language-Arts (“ELA”), math, reading, literature, physical education, science, social studies, drama, social skills, library, music, and technology.[57] The Private School also created a Behavior Intervention Plan for the Student, and provided a sensory diet and related services for the Student such as speech-language therapy, physical therapy, occupational therapy, and counseling services. [58]
The Educational Director at the Private School testified credibly that the Student needs instruction incorporating ABA methodology so that the Student can be taught in “small increments, at his own pace, in an individualized setting” with a “great deal of repetition, individualized attention and review.”[59] The Educational Director at the Private School explained that the ABA instruction and 1:1 support with behavioral interventions allowed the Student to make progress despite his “limited attention span and self-regulation delays.” [60]
In the Student’s reading class, the teachers at the Private School used Leveled Literary Intervention (“LLI”), which is a program “designed to help struggling readers achieve grade-level competency… [by] provid[ing] explicit instruction in phonological awareness, phonics, fluency, vocabulary, reading comprehension, oral language skills, and writing.”[61] The Student’s Progress Report shows that by the end of the 2022-2023 school year, the Student’s ability to read 50 “CVC words,” write his first and last name, identify upper and lower case letters, and identify the sounds of letters had progressed.[62] Also, the Student “has exhibited steady growth in his reading skills.”[63] For math, the Private School used a multi-sensory curriculum called “Equals Math,” and the teachers work 1:1 with the students or in small groups.[64] The teachers used visual aids to assist the Student, and the Student mastered adding two single digit numbers using a number line.[65] The Student also was able to identify numbers 1 to 100 by the end of the school year. [66]
In addition, the Private School also provides classes related to activities of daily living and social skills. The life skills curriculum focused on helping the Student function appropriately in the real world and provided the Student a multi-sensory, high individualized approach to teaching him how to be independent.[67] The Student “has shown improvement in managing his selfstimulating behaviors,” and is now able to take out his lunch and eat independently.[68] In addition, the Student’s interactions with his peers have improved, and “he now engages in more appropriate play activities, such as playing soccer outside.” [69]
The Student has shown progress in his related services including speech-language therapy, physical therapy, occupational therapy, and counseling services.[70] In speech-language therapy, the Student has worked on his expressive, pragmatic, and receptive speech-language goals, and he can now communicate a request for a preferred item using a sentence of four or more words 85% of the time.[71] In physical therapy, the Student worked with the Private School’s physical therapist to address his deficits in mobility, muscular strength, endurance, balance, safety awareness, and coordination.[72] Moreover, the Student has made progress in occupational therapy.[73] For example, the Student has made significant improvements with typing since he can now type letters with 10 words per minute and 95% accuracy.[74] The Student has also worked weekly with a counselor to improve his ability to identify and express his emotions.[75] The counselor broke down the Student’s sessions into 3-5 brief activities with movement or sensory breaks to prevent the Student from being overstimulated. [76]
CONCLUSIONS OF LAW AND ANALYSIS
In this case, the Parents request that the DOE directly fund the cost of the Student’s tuition for the Private School for the 2022-2023 school year on a 12-month basis. 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.[77] 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.” [78]
A district must pay for the cost of a student’s tuition at a private school if the three prongs of the Burlington/Carter test are met: (1) the DOE denied the student a FAPE; (2) the private placement is appropriate; and (3) the equities favor an order of tuition.[79] In due process hearings under the IDEA in New York, school districts have the burden of proof, including the burden of production and burden of persuasion. However, there is an exception in that a parent seeking tuition reimbursement or funding for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement. [80]
Prong 1
The IDEA and the New York Education Law require school districts to offer a FAPE to each child with a disability residing in their district who requires special education programs or services.[81] 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.[82] 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.[83] Under the IDEA, students with disabilities are entitled to be educated in the least restrictive environment that meets their unique needs.[84] 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.” [85]
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.”[86] 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.’”[87] A school district must be able to “offer a cogent and responsive explanation for their decisions” in creating the IEP.[88] 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.[89] The IEP should: (1) accurately reflect the results of evaluations to identify the student’s needs,[90] (2) provide for the utilization of sufficient special education programs or services,[91] and then (3) the IEP must be properly and timely implemented.[92] Failure to implement substantial or significant provisions of an IEP is a denial of a FAPE. [93]
Here, the Parents alleged that the DOE denied the Student a FAPE. Specifically, the Parents alleged the following: (1) the DOE did not conduct sufficient evaluations of the Student prior to the January 2022 IEP meeting, (2) the IEP team was not validly constituted, (3) the DOE failed to consider the full continuum of services available for the Student that would sufficiently provide the Student with the level of individualized instruction and behavioral support he needs in order to make progress, (4) the IEP developed by the District failed to include proper long-term goals and short-term objectives, and the IEP goals are insufficient, vague, and unmeasurable, (5) the DOE failed to offer a program that provides sufficient supports and strategies to address the Student’s academic, attentional, sensory/motor, behavioral, and speech-language needs and (6) the DOE failed to meaningfully respond to the Parents’ concerns about the Public School, and the Public School’s inability to implement the Student’s IEP as written. [94]
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 waived her opening statement and did not call any witnesses at the hearing.[95] While the DOE Attorney submitted three exhibits into the hearing record including the Student’s January 2022 IEP, Prior Written Notice (“PWN”) dated May 26, 2022 and the School Location Letter dated May 26, 2022, a review of same offers no explanation as to how the CSE made its recommendation, how the IEP appropriately describes the Student, or whether the IEP is meaningfully calculated to confer educational benefit. I find that the DOE failed to “offer a cogent and responsive explanation for their decisions” in creating the January 2022 IEP, and it is “through the IEP that “[t]he ‘free appropriate public education’ required by the Act is tailored to the unique needs of” a particular child.”[96] I find that the documentary evidence admitted into the hearing record by the DOE could not rebut the Parents’ allegations. In addition, I also find that on its face, the January 2022 IEP was inappropriate for the Student because it could not meet the Student’s unique needs and confer educational benefit. The evidence in the hearing record shows that the Student required a small, full-time specialized program for students with Autism, which includes significant individualized instruction and behavioral support. Therefore, I find that the DOE failed to provide the Student with a FAPE for the 2022-2023 school year.
Prong 2
Next, I must consider whether the Parents’ unilateral placement at the Private School was appropriate for the Student. A unilateral private school placement is appropriate if it is “reasonably calculated to enable the child to receive educational benefits.”[97] Parents need not show that the unilateral placement is perfect or that it meets all state educational standards.[98] 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.”[99] In addition, parents seeking reimbursement or tuition funding “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.”[100] 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.’” [101]
A unilateral placement is appropriate if it provides instruction specially designed to meet the unique needs of a student.[102] 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.[103] A private school placement must be “proper under the Act.”[104] This means that the Private School must offer an educational program which meets the Student’s special education needs.[105] I find that the Private School meets the Frank G. standard and provides the Student educational instruction that is designed to meet the Student’s unique needs and enable the Student to make progress in light of his unique circumstances.
Here, the DOE Representative did not make any arguments at the hearing regarding the appropriateness of the Private School.[106] I find that the Parents’ met their burden in showing that the Private School was appropriate for the Student for the 2022-2023 school year. Primarily, the Private School was appropriate because it provided the Student with individualized instruction in small classes with similarly functioning peers. This “comes within the IDEA definition of ‘special education,’ namely, ‘specially designed instruction . . . to meet the unique needs of a child.’”[107] The hearing record shows that the Private School “is designed for students with are diagnosed with Autism and/or have language, social skills development, and academic needs.”[108] The Private School first determined the Student’s current skill levels and deficits, and then grouped the Student in a class with nine other students of similar age, social functioning, and academic level with one lead teacher and six assistant teachers.[109] Having six assistant teachers in addition to a lead teacher provided the 1:1 support the Student requires in order to learn.
Additionally, the Private School was appropriate because it provided the Student with instruction from trained teachers who used ABA methodology and 1:1 support with behavioral interventions. 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 his needs.[110] The Student’s head teacher for the 2022-2023 school year has a master’s degree in both education and special education, and the assistant teachers are trained in ABA methodology and either have a bachelor’s degree, are currently enrolled in an undergraduate program, or have experience working with individuals with special needs.[111] Here, the Student needs instruction incorporating ABA methodology so that the Student can be taught in “small increments, at his own pace, in an individualized setting” with a “great deal of repetition, individualized attention and review,” which is exactly the program that the Private School provided. [112]
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.[113] 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.[114] In this case, the Student made progress during the 2022-2023 school year. For instance, the Student’s Progress Report shows that by the end of the 2022-2023 school year, the Student’s ability to read 50 “CVC words,” write his first and last name, identify upper and lower case letters, and identify the sounds of letters had progressed.[115] The Student “has exhibited steady growth in his reading skills.”[116] In addition, in math, the Student mastered adding two single digit numbers using a number line and was also able to identify numbers 1 to 100 by the end of the school year.[117] I find that the tailored curriculum with individualized instruction using ABA methodology was critical to enabling the Student to learn and make progress.
In addition, the Private School also appropriately provided classes related to activities of daily living and social skills. The life skills curriculum focused on helping the Student function independently.[118] The Student “has shown improvement in managing his self-stimulating behaviors,” and is now able to take out his lunch and eat independently.[119] In addition, the Student’s interactions with his peers have improved since the beginning of the school year, and “he now engages in more appropriate play activities, such as playing soccer outside.” [120]
Furthermore, the Private School was appropriate for the Student because it provided the Student with appropriate related services including speech-language therapy, physical therapy, occupational therapy, and counseling services, and the Student has shown progress in his related services.[121] In speech-language therapy, the Student can now communicate a request for a preferred item using a sentence of four or more words 85% of the time.[122] In addition, the Student has made significant improvements with typing since he can now type letters with 10 words per minute and 95% accuracy.[123] The Student has also worked weekly with a counselor to improve his ability to identify and express his emotions. [124]
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.”[125] I find that the Parents have met their burden in proving that the Private School offered an educational program which met the Student’s needs under Prong 2 of the Burlington/Carter standard.
Prong 3
Under the third and last prong of the Burlington/Carter test, courts must consider “equitable factors” relevant to an order of tuition.[126] “[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.”[127] 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."[128] In making that equitable determination, a hearing officer may consider many factors, including, but not limited to, whether a parent’s unilateral withdrawal of her child from the public school was justified, whether the parent provided the DOE with adequate notice of the withdrawal, whether the amount of private school tuition was reasonable, and whether there was any fraud or collusion in generating or inflating the tuition to be charged to the DOE, or whether the arrangement with the school was fraudulent or collusive in any other respect.[129] In addition, equitable considerations include the parents’ participation in IEP meetings and visits to the proposed school placements. [130]
Here, the Parents fully cooperated with the CSE, and Parent 1 fully participated in the IEP process. The Parents’ cooperation and participation weighs in favor of the Parent’s request for a tuition award under Prong 3 of the Burlington/Carter standard.[131] Here, Parent 1 participated in the January 2022 IEP meeting.[132] Parent 1 shared progress reports from the Private School with the IEP team.[133] Therefore, the Parents’ cooperation with the IEP process weighs in their favor when considering the equities.
Next, Parent 1 attempted to obtain information about the Public School when she toured the school on June 16, 2022. A parent’s attempt to investigate the district’s proposed placement is another factor that weighs in favor of an award of tuition funding under Prong 3.[134] In this case, Parent 1 toured the Public School and found out that there were only two classes, one class had 12 students and one class had 9 students.[135] In addition, the Public School did not have a sensory gym and did not provide ABA instruction or support.[136] After the tour of the Public School concluded, the Parents had concerns about both the IEP and the proposed placement. Specifically, the Parents were concerned that neither the IEP nor the placement offered the Student the structure and teacher support he requires.[137] Overall, I find that the Parents engaged in the school selection process and that this weighs in their favor under Prong 3.
Furthermore, on June 17, 2022, the Parents provided the necessary Ten-Day Notice of their concerns with the DOE’s offer of FAPE for the Student for the 2022-2023 school year and their intent to unilaterally place the Student in the Private School.[138] In the letter, the Parents listed their concerns regarding the Student’s IEP and the Public School.[139] The DOE did not submit evidence at the hearing describing its response to the Ten-Day Notice, if any.
Lastly, “[c]ourts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable.”[140] As discussed previously, Parent 1 signed a contract with the Private School for the Student to attend the school for the 2022-2023 school year. [141] According to the contract, the cost of the tuition for the 2022-2023 school year on a 12-month basis is $125,000.[142] According to the Private School’s Tuition Affidavit, the entire amount of $125,000 remains unpaid.[143] I find no issue with the reasonableness of the cost of tuition for the Private School. The Student’s attendance record for the 2022-2023 school year shows that the Student attended the Private School regularly with only a reasonable number of excused absences.[144] Furthermore, the DOE did not make any arguments at the hearing regarding the equities.[145] Overall and after considering the record at the hearing, I find that the equities support the Parents’ claim for direct tuition funding.
By way of relief, the Parents seek to have the entire cost of the tuition for the 2022-2023 school year paid directly to the Private School. Direct tuition funding is relief encompassed by the equitable remedial powers inherent in IDEA.[146] Tuition at the Private School for the 2022-2023 school year was $125,000.[147] Pursuant to the contract, the Parents are liable for tuition for the entire school year, including if the Parents are denied tuition funding through a final decision.[148]
I find that the Parents are entitled to the requested form of payment. 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.”[149] Considering Parent 1’s testimony regarding her 2022 income at $15,624, I find that the tuition costs of the Private School far exceed the Parents’ income.[150] Equity demands that the DOE fund the Student’s Private School tuition directly in this instance.
As I have found that the Burlington/Carter test has been met, that there is no evidence that the tuition amount sought is unreasonable, and that there is evidence that the Parents are unable to pay for the Private School, I am granting the request for direct tuition payment to the Private School for the entire cost of tuition, $125,000, for the 2022-2023 school year.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the Parents’ claim for direct tuition funding for the Student’s unilateral placement at the Private School is GRANTED for the 2022-2023 school year. The New York City Department of Education shall directly pay the Private School in the amount of $125,000 within 35 days of the date of this Order.
SO ORDERED.
________________________
DATED: October 20, 2023
Robin Levin, Esq.
Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the parent and/or the Public-School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.
An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.
APPENDIX A – DOCUMENTATION ENTERED INTO THE RECORD
PARENT EXHIBITS
A. Impartial Hearing Request 5/03/2023 (4 pages)
B. Ten Day Notice Letter 6/17/2022 (2 pages)
C. Progress Report August 2023 (16 pages)
D. Behavior Intervention Plan 2022-2023 (6 pages)
E. Class Schedule 2022-2023 (1 page)
F. Attendance 2022-2023 (2 pages)
G. Enrollment Contract 6/24/2022 (1 page)
H. Affidavit of Payment 8/08/2023 (1 page)
I. Program Description 2022-2023 (7 pages)
J. Affidavit Testimony of Parent 1 Undated (5 pages)
K. Affidavit Testimony of Educational Director at the Private School Undated (8 pages)
DOE EXHIBITS
1. Individualized Education Program (IEP) 1/12/2022 (22 pages)
2. Prior Written Notice Package 5/26/2022 (4 pages)
3. School Location Letter 5/26/2022 (3 pages)
IHO EXHIBITS
None
Footnotes
[1] Exhibits will be referred to as “Ex.” followed by lettered designations for Parents’ Exhibits and numbered designations for DOE’s Exhibits. Exhibit designations will be followed by the page numbers as needed and appropriate. For example, Parents’ Exhibit A, page 1, will be referred to as (Ex. A-1). Transcripts of the Pre-Hearing Conference 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-1; Ex. 1-1.
[3] Ex. A; Ex. F; Ex. G.
[4] Ex. A. The DPC is dated May 3, 2023, but it was filed on May 9, 2023. In addition, I find that all of Parents’ claims can be resolved under the IDEA, and claims brought pursuant to Section 504 are otherwise subsumed.
[5] Ex. A-1.
[6] Ex. A-2.
[7] Ex. A.
[8] Id.
[9] Ex. A-3.
[10] Ex. A-4.
[11] Id.
[12] DPH Tr. 26-28.
[13] PHC 6/21/2023 Tr. 5-9. In addition, the parties consented to an Order of Pendency in this matter (See Order on Pendency dated June 21, 2023).
[14] PHC 7/6/2023 Tr. 1-18.
[15] PHC 7/6/2023 Tr. 9-10; See Order of Extension.
[16] DPH Tr. 16-69.
[17] DPH Tr. 21. A detailed list of the admitted exhibits is attached to this decision as Appendix A, “Exhibits Entered Into the Record.”
[18] DPH Tr. 22-23.
[19] DPH Tr. 23.
[20] DPH Tr. 24-32; Ex. J.
[21] DPH Tr. 32.
[22] DPH Tr. 33-35; See Order of Extension 2.
[23] The second hearing date was originally scheduled for September 11, 2023. However, the Parents’ Attorney requested an adjournment and on consent of the DOE, the hearing was adjourned to September 20, 2023. In addition, on September 12, 2023, the DOE Representative filed a notice of appearance indicating that he was taking the case over. (See DOE NOA 9/12/2023).
[24] Tr. 47-48; Ex. K.
[25] DPH Tr. 51-57.
[26] DPH Tr. 59-66; See Order of Extension 3.
[27] Ex. 1-1; Ex. A; Ex. J-1; Ex. K-2.
[28] Ex. 1-2.
[29] Ex. A-1-2.
[30] Ex. J-1; Ex. K-2.
[31] Id.
[32] Ex. J-1.
[33] Ex. J-3.
[34] Ex. J-1-3; Ex. 1-14.
[35] Ex. J-2.
[36] Ex. J-2-3.
[37] Id.
[38] Id.
[39] Ex. J-3; Ex. 2; Ex. 3.
[40] Ex. J-3.
[41] Id.
[42] Id
[43] Ex. B; Ex. J-3-4.
[44] Ex. B-2; Ex. J-4.
[45] Ex. J-4.
[46] Ex. G.
[47] Id.
[48] Ex. J-4-5.
[49] Ex. H.
[50] Ex. F.
[51] Ex. I-1.
[52] Id.
[53] Ex. I-2.
[54] Ex. K-3.
[55] Ex. K-2.
[56] Ex. K-3.
[57] Ex. E.
[58] Ex. D; Ex. K-4-5.
[59] Ex. K-2.
[60] Ex. K-5.
[61] Ex. I-2.
[62] Ex. C-1; Ex. K-4-5.
[63] Ex. C-5.
[64] Ex. I-5.
[65] Ex. C-5; Ex. K-5.
[66] Ex. C-1.
[67] Ex. I-4.
[68] Ex. C-5; C-1.
[69] Ex. C-1.
[70] Ex. K-5-7.
[71] Ex. C-7.
[72] Ex. C-11.
[73] Ex. C-13.
[74] Ex. C-14.
[75] Ex. K-7.
[76] Ex. C-16.
[77] 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)).
[78] 20 U.S.C. § 1415(b)(6)(A).
[79] See Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 367 (1985); Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12-15 (1993).
[80] NY Educ. Law § 4404(1)(c)).
[81] 20 U.S.C. § 1412 (a)(1)(A); Education Law §§ 4402(2)(a), (b)(2).
[82] 34 C.F.R. §300.13.
[83] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
[84] Oberti v. Board of Educ., 995 F.2d 1204 (3rd Cir. 1993).
[85] 20 U.S.C. §1415 (f)(3)(E)(ii); 34 C.F.R. §300.513(a)(2).
[86] Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017).
[87] Cerra, 427 F.3d at 195, quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998).
[88] Endrew F.,137 S.Ct. 988, 999.
[89] 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).
[90] 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).
[91] 34 C.F.R. § 300.320(a)(4); 8 N.Y.C.R.R. 200.4(d)(2)(v).
[92] See 8 N.Y.C.R.R. 200.4(e)(7); Application of a Child with a Disability, Appeal No. 08-087.
[93] 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).
[94] Ex. A.
[95] DPH Tr. 23.
[96] Endrew F., 137 S.Ct. at 1002.
[97] Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006); Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007).
[98] Frank G., 459 F.3d at 364-65; T.K. v. New York City Dept. of Educ., 810 F.3d 869, 878 (2d Cir. 2016); M.S. v. Yonkers Bd. of Educ., 231 F.3d 96, 105 (2d Cir. 2000).
[99] Frank G., 459 F.3d 356, 364; Gagliardo, 489 F.3d 105, 112.
[100] Gagliardo, 489 F.3d at 112.
[101] Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d 356, 364.
[102] 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).
[103] Frank G., 459 F.3d at 364; See Gagliardo, 489 F.3d at 112.
[104] Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370.
[105] Gagliardo, 489 F.3d 105, 112,115; Walczak142 F.3d 119.
[106] DPH Tr. 59.
[107] Frank G., 459 F.3d at 365 (citing 20 U.S.C. § 1401(29)).
[108] Ex. I-1.
[109] Ex. K-2.
[110] Frank G., 459 F.3d at 364.
[111] Ex. K-3.
[112] Ex. K-2.
[113] Frank G., 459 F.3d at 365 (citing Knable, 238 F.3d at 768).
[114] Weaver v. Millbrook Cent. Sch. Dist., 812 F. Supp. 2d 514, 523 (S.D.N.Y. 2011).
[115] Ex. C-1; Ex. K-4-5.
[116] Ex. C-5.
[117] Ex. C-1.
[118] Ex. I-4.
[119] Ex. C-5; C-1.
[120] Ex. C-1.
[121] Ex. K-5-7.
[122] Ex. C-7.
[123] Ex. C-14.
[124] Ex. K-7.
[125] Frank G., 459 F.3d at 364.
[126] Gagliardo, 489 F.3d at 112.
[127] Bettinger v. New York City Bd. Of Educ., 2007 WL 4208560, at *6 (S.D.N.Y. Nov. 20, 2007).
[128] Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246-47, 129 S. Ct. 2484, 174 L. Ed. 2d 168 (2009).
[129] E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014).
[130] D.A. v. New York City Dep’t of Educ., 769 F. Supp. 2d 403, 419-20 (S.D.N.Y. 2011).
[131] M.H. v. N.Y.C. Dep’t of Educ., 685 F.3d 217, 254 (2d Cir. 2012).
[132] Ex. J-1-2; Ex. 1-22.
[133] Ex. J-2; Ex. 1.
[134] C.F. ex rel. R.F. v. N.Y.C. Dep’t of Educ., 746 F.3d 68, 82 (2d Cir. 2014).
[135] Ex. J-3.
[136] Id.
[137] Id.
[138] 34 C.F.R. § 300.148(d)(1)(ii); Ex. B.
[139] Ex. B.
[140] Florence Cnty. Sch. Dist. Four v. Carter, 510 U.S. 7, 16, 114 S. Ct. 361 (1993); J.S. v. Scarsdale Union Free Sch. Dist., 826 F.Supp.2d 635, 671 (S.D.N.Y. 2011).
[141] Ex. G.
[142] Id.
[143] Ex. H.
[144] Ex. F.
[145] DPH Tr. 59.
[146] 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”).
[147] Ex. G; Ex. H.
[148] Ex. G.
[149] 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.)
[150] Ex. J-5.