NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
CASE NUMBER:600188 -[REDACTED]: 248618
FINDINGS OF FACT AND DECISION
Case Number: 248618
Student’s Name[1]: [REDACTED] (“Student”)
Date of Birth: [REDACTED]
School District: [REDACTED]
Hearing Requested by: [REDACTED] (“Parent”)
Request Date/Date Complaint Filed: May 26, 2023
Date(s) of Hearing: August 30, 2023 and September 5, 2023
Actual Record Closed Date: September 5, 2023
Date of Decision: September 19, 2023
Date of Distribution if Different than Decision Date:
Hearing Officer: Lisa S. Rusk, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 30, 2023
For the Student:
[REDACTED], Attorney
[REDACTED], Parent
For the Department of Education:
[REDACTED], District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 5, 2023
For the Student:
[REDACTED], Attorney
[REDACTED], Parent
For the Department of Education:
[REDACTED], District Representative
INTRODUCTION AND PROCEDURAL HISTORY
This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parent’s Due Process Complaint (“DPC"), dated May 26, 2023. (Ex. P-A)[2]. The record does not contain any evidence of a response by [REDACTED] (hereinafter referred to as “the District”). This IHO was appointed on May 30,2023. An order denying consolidation was issued on May 31, 2023. The District filed a motion to dismiss on June 23, 2023. A pre-hearing conference was held on June 30, 2023, following the resolution period. The Parent opposed the motion to dismiss on July 10, 2023. The IHO issued an order denying the motion to dismiss on July 21, 2023. A status conference was held on July 26, 2023. At the request of the District, subpoenas duces tecum were executed by the IHO for records from both programs at issue on July 31, 2023. Hearing dates were held on August 30, 2023 and September 5, 2023. [REDACTED] appeared on behalf of the District. [REDACTED] appeared for the Parent.
Two extensions of the compliance date were granted at the request of the parties based upon witness availability. The Parents entered into evidence exhibits A-N.[3] The Parent testified on behalf of the Student. The District did not enter any evidence into the record. The parties made closing arguments on the record. The record was closed on September 5, 2023.
JURISDICTION
The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq. The DPC also alleges violations under Section 504 of the Rehabilitation Act of 1973 (Ex. P-A). Parent’s counsel confirmed that there was no distinct Section 504 claim being raised (T:4).
BACKGROUND
The Student was [REDACTED] years old at the time of the filing of the DPC and had graduated with a high school diploma. The Student was declassified by the Committee on Special Education (“CSE”) when he was in middle school at the request of the Parent. The Student began attending public high school in the ninth grade at [REDACTED] High School. By letter dated, May 7, 2021, the Parent re-referred the Student to the District’s CSE due to escalating behavioral concerns and significant decline in his school performance. The Parent unilaterally placed the Student in [REDACTED] in [REDACTED] (hereinafter referred to as [REDACTED]) on April 11, 2021 through May 27, 2021 (Ex. P-B-1 and P-C-1). On May 27, 2021, he was admitted to [REDACTED] in [REDACTED] (hereinafter referred to as [REDACTED]) where he remained until August 5, 2021 (Ex. P-N-1).
There is no evidence in the record of a District CSE meeting or an Individualized Education Program (“IEP”) during the time period at issue.
ISSUES
The Parent alleges that the District violated its Child Find obligation under the IDEA and State law by failing to timely evaluate, develop a program for and place the Student in a program in response to the May 7, 2021 parental referral to the CSE. In the DPC, the Parent seeks reimbursement for tuition paid to [REDACTED] and [REDACTED] during the 2020-21 school year and Summer of 2021.
The Parent withdrew his reimbursement claim for the [REDACTED] program (T:14-15) and is seeking reimbursement solely for the [REDACTED] placement from May 27, 2021 through August 5, 2021.
The District advised at the hearing on August 30, 2023 that it did not intend to present a case and waived an opening statement (T:33,38). On September 5, 2023, the District advised that it did not receive a response from [REDACTED] to the subpoena duces tecum. Apparently, the [REDACTED] program is no longer in existence (T:73).
FINDINGS OF FACT
The Parent described the Student as very kind, caring, intelligent and inquisitive. He has struggled over the years with emotional regulation, executive functioning issues, ADHD and peer relationships. He was first identified as in need of special education in first grade and received services in a private elementary school. He began middle school in a private school (T:43-44). At the end of middle school, his Parent and teachers believed that he no longer required special education services. He began attending public high school at [REDACTED] High School and remained there until the spring of his junior year (T:45). He did very well freshman year, but his grades steeply declined in the fall semester of his sophomore year. The school became afraid for his safety. In one incident they locked down the high school and found him alone sitting in the bleachers (T:46-47). His struggles continued at home during the COVID lockdown (T:47).
The Student was diagnosed with depression by [REDACTED], and the Parent shared this information with the school. No one from [REDACTED] ever recommended that he be evaluated by the CSE (T:48). In the Spring of 2021, he was still remote. The Parent reached out to teachers and guidance counselor to advise the Student needed more accommodations and support. At home he was becoming more volatile, and his outbursts were increasing in nature and severity (T:49-51). His difficulties culminated with an incident where he had to be restrained from jumping out of a window at home. He was taken to the hospital for evaluation (T:51-52).
The Parent enrolled the Student at [REDACTED] for a short term 60 day stay (T:52). He entered on April 11, 2021 and was discharged on May 27, 2021. On July 13, 2021, the licensed clinical social worker from [REDACTED] stated in a letter that the Student was discharged to [REDACTED] where he was referred to continue progress on his therapeutic goals of building distress tolerance and emotion regulation and to increase his stability and functioning (Ex. P-B). On July 21, 2021, the medical director of [REDACTED] wrote that the Student required specialized educational services under an IEP. He recommended that he be placed in a residential education setting and that such an environment was necessary and required for him to be able to successfully access his academics (Ex. P-C).
The Parent spent quite a bit of time researching the next program after [REDACTED] to determine it was a good fit (T:55). The Parent signed an enrollment contract with [REDACTED] on May 24, 2021 (Ex. P-E-7). By letter dated June 7, 2021, [REDACTED] confirmed that the Student was accepted to their wilderness treatment facility for struggling youths in [REDACTED]. The letter states that wilderness therapy is designed to provide students with the physical environment in which they can gain perspective on their lives while utilizing sophisticated evidence-based therapeutic care supplied by licensed, credentialed therapists. The letter states further that [REDACTED] is accredited by [REDACTED] Accreditation Commission and “students are invited to work on academic workbooks which can help them earn up to four 0.5 school credits (2.0 credits total) in the following areas: Physical Education, Life Skills, Health II and Art.” (Ex. P-D).
Outback’s master treatment plan indicates diagnoses of major depressive disorder, recurrent episode, moderate and generalized anxiety disorder (Ex. P-L-1). It contains goals to improve his mood and sense of well-being and enhance his ability to cope with life’s worries and anxieties. The interventions include individual and group therapy and therapeutic exercises (Ex. P-L-2-3). His discharge summary indicated that his emotional regulation and frustration tolerance improved, his coping mechanisms improved, and he began to recognize his executive functioning difficulties (Ex. P-M-2-3). It was recommended that he attend a residential therapeutic school upon discharge (Ex. P-M-3).
[REDACTED]’s HR Generalist explained that “the educational and therapeutic aspects are so intertwined that there are no set ‘hours’ of classes. Students can earn .5 credits for each of the following categories: Health II, Physical Education, Art and Life Skills. None of these are in class nor schedule format. Students work on workbooks throughout the 10-12 week stay with us. There is not a set workbook for each class, they are all mixed together.” (Ex. P-G). According to the academic coordinator, the Student earned 2.0 credits (Ex. P-N). The Parent’s evidence contains a list of [REDACTED]’s team. It includes the executive team, clinical team, primary therapists, admissions and engagement, field and medical and administrative team (Ex. P-K). According to [REDACTED], the Parent paid $45,851.40 for the Student’s stay (Exhibit P-F). Insurance claims submitted by the Parent were denied (T:56).
The Parent testified that the Student made progress through increased physical activity to treat his depression, increased willingness to communicate and a realization of his issues and need for support (T:59-61). He continued to do some academic work at [REDACTED] that earned him credits toward a high school diploma (T:62-63,79,82-83).
CONCLUSIONS OF LAW
The IDEA provides that children with disabilities are entitled to a free appropriate public education (“FAPE”) (20 U.S.C. § 1400 [d][1][A]). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written IEP (34 C.F.R. § 300.13). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). 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 (2017). If a procedural violation has occurred, relief is warranted only if the procedural violation affected the student's right to a FAPE. 8 NYCRR §200.5[4]; J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 (2d Cir. 2000).
In New York State, school districts have the burden of proof, including the burden of persuasion and burden of production in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement or payment for services for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement (NYS Educ. Law § 4404(1)(c)). It is well settled that 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]).(Application of a Child with a Disability, SRO Appeal No. 22-154).
For students suspected of having a disability, a school district is required to respond within 10 school days upon receipt of a referral for evaluation (8 NYCRR 200.4[a][2][iv]). After seeking and receiving parental consent for evaluation, the school district must initiate an individual evaluation of a student and complete the evaluation within 60 days of receipt of consent (8 NYCRR 200.4[b][1]). The CSE must consider the evaluative material and determine if the student is eligible for special education services as a student with a disability. The CSE then shall provide a recommendation to the board of education within 60 school days of the receipt of consent to evaluate (8 NYCRR 200.4[d]). This is in addition to the school district’s affirmative Child Find obligation under 8 NYCRR 200.2(a)(7) and the IDEA.
In reviewing evaluative information and considering eligibility as a student with an emotional disability, Section 200.1(zz)(4) states:
“(4) Emotional disability means a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a student's educational performance:
(i) an inability to learn that cannot be explained by intellectual, sensory, or health factors; (ii) an inability to build or maintain satisfactory interpersonal relationships with peers and teachers; (iii) inappropriate types of behavior or feelings under normal circumstances; (iv) a generally pervasive mood of unhappiness or depression; or
(v) a tendency to develop physical symptoms or fears associated with personal or school problems. The term includes schizophrenia.
The term does not apply to students who are socially maladjusted, unless it is determined that they have an emotional disability.”
Assuming a student is eligible for special education services, a board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School Dist.
Four v. Carter, 510 US 7 [1993]). If the District is unable to prove that it met its burden under Prong I of the three prong Burlington/Carter test, the Parent in order to meet his burden must establish by a preponderance of the evidence, that the unilateral placement provided “educational instruction specifically designed to meet the unique needs of the student” (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 [2d. Cir. 2007]. However, the private school placement “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements” (Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d. Cr. 2006]. The private placement need not provide certified special education teachers or an IEP. Parental placements are not subject to the same mainstreaming requirements as a school district placement. The private school placement must be reasonably calculated to enable the child to receive educational benefits, and must be likely to produce progress, not regression.
The standard to apply is whether "[the] unilateral private placement ... provides educational instruction specifically designed to meet the unique needs of a handicapped child" Gagliardo, 489 F.3d at 115):
“No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits.
Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.” Gagliardo,489 F.3d at 112 (quoting Frank G , 459 F.3d at 364-
65).
Specially designed instruction is defined as “adapting, as appropriate to the needs of an eligible student under the Part, the content, methodology, or delivery of instruction to address the unique needs that result from the student’s disability.” (8 NYCRR 200.1[vv]; 34 CFR 300.39[b][3]).
Finally, under the third prong of the Burlington/Carter test, equitable factors must weigh in the favor of the parents in order to qualify for an award of tuition reimbursement.
ANALYSIS
The District does not dispute that it failed to fulfill its Child Find obligations. It did not offer any evidence of an attempt to obtain consent to evaluate the student, an evaluation of the Student, notice of a CSE meeting, prior written notice regarding an eligibility determination or an IEP. The record lacks any evaluative documentation in support of the Student’s eligibility for classification as a student with a disability. However, the testimony of the Parent, letter from the [REDACTED] social worker, letter from the [REDACTED] medical director and [REDACTED]master treatment plan and discharge summary consistently describe the Student as struggling with major depressive disorder and generalized anxiety disorder which made his continued attendance in a regular public high school unfeasible. I find that the District failed in its Child Find obligation during the period in question as there is no evidence of an evaluation or attempt to evaluate. I find further based upon the limited record before me that the Student met the criteria for a student with an emotional disability. I find further that the District has failed to meet its burden under Prong I of the Burlington/Carter test.
The next inquiry is whether under Prong II of the Burlington/Carter test [REDACTED] was appropriate or proper. The only witness who testified on behalf of [REDACTED] was the Parent. No teacher or administrator testified from [REDACTED] since it is no longer in existence. No other educational or clinical professional testified on behalf of [REDACTED]. While the Parent testified to some anecdotal improvement in the Student’s mental health, the hearing record does not describe the program as delivered to the student other than a general description of the program and the master treatment plan. In addition, while a private school is not held to the same standard as the public school, the record is devoid of any evidence of a proper educational component. No core courses were offered. No academic classes were scheduled or regularly held. The master treatment plan contained no academic goals or accommodations. The discharge summary does not discuss his academic programming. The list of [REDACTED] employees in evidence does not list a single teacher, let alone a certified or qualified teacher (Ex. P-K). The Student appeared to work from workbooks with little to no instructional support. No evidence of report cards or progress reports was provided, other than a lone grade report (Ex. P-N).
It is undeniable that the Parent was faced with incredibly difficult circumstances in seeking to find help for his son’s deteriorating mental health. However, based upon a thorough review of the record, I find the evidence does not establish the Parent has met his burden under Prong II that [REDACTED] provided educational instruction specifically designed to meet the unique special education needs of the Student as defined in regulations and caselaw.
Given my findings on Prong II, I do not find it necessary to consider the equities under Prong III.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby ordered:
1. that the Parents’ request for tuition reimbursement for the cost of [REDACTED] is denied. SO ORDERED. DATED: September 19, 2023
Lisa S. Rusk
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 – REDACTION IDENTIFICATION PAGE
APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD
PARENT EXHIBITS
Exh. # Description Date Pages
A. Request for Impartial Hearing 5/26/2023 3
B. [REDACTED]Letter from [REDACTED] 7/13/2021 1
C. [REDACTED]Letter from [REDACTED] 7/21/2021 1
D. [REDACTED]Letter from [REDACTED] 6/7/2021 1
E. [REDACTED]Enrollment Agreement 5/24/2021 7
F. [REDACTED]Payment Affidavit 3/30/2022 1
G. [REDACTED]Letter from [REDACTED] 4/5/2022 1
H. [REDACTED]Website Home Page (Archived) 2/6/2023 9
I. [REDACTED]Website – Academics (Archived) 4/1/2023 3
J. [REDACTED]Website – Accreditations 4/1/2023 4
(Archived)
K. [REDACTED]Website – Meet Our Team 12/5/2022 8
(Archived)
L. [REDACTED]Master Treatment Plan 6/11 – 8/9/2021 4
M. [REDACTED]Discharge Summary 8/9/2021 3
N. [REDACTED]Final Transcript 9/2/2021 1
Footnotes
[1] Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.
[2] Exhibits shall be referred to as follows: “P” for Parents’ Exhibit; “D” for District’s or Department’s Exhibits; and “IHO” for Impartial Hearing Officer’s Exhibits. Exhibits will be followed by the exhibit number and page numbers as needed and appropriate.
[3] A more detailed list of the admitted exhibits is attached as Appendix B, “Documentation Entered Into the Record,” to this decision.