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FINDINGS OF FACT AND DECISION
Case Number: 248709
Student’s Name: REDACTED
Date of Birth: REDACTED
School Service District: REDACTED
Impartial Hearing Officer: Eryn DeFontes, Esq.
Date of Filing: June 2, 2023
Hearing Requested by: Parent
Date of Hearing: August 24, 2023, September 5, 2023 Record Close Date: October 15, 2023
Date of Decision: October 15, 2023
NAMES AND TITLES OF PERSONS WHO APPEARED:
On August 24, 2023
For the Student:
Parent’s Attorney
Parent/Guardian
Private School Principal
For the Department of Education (DOE or District):
DOE Representative
Interpreter #1
On September 6, 2023
For the Student:
Parent’s Attorney
Parent/Guardian
For the Department of Education (DOE or District):
DOE Representative
Interpreter #1, #2, #3
BACKGROUND and PROCEDURAL HISTORY
This matter concerns a REDACTED-year-old Student, classified as a Student with a Disability under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq.[1] Student currently attends the Private School. The Parent filed a due process complaint (DPC) on June 2, 2023, alleging inter alia, that the DOE failed to provide Student with a free and appropriate public education (FAPE) for the 2021-2022 school year and requesting relief in the form of funding of tuition for the Student’s enrollment at the Private School for the 2021-2022 school year.[2] The undersigned Impartial Hearing Officer (IHO) was appointed on June 5, 2023. A pre-hearing conference was held on July 14, 2023 and a hearing on the merits was held on August 24, 2023 and September 5, 2023. The Parent proffered exhibits A-L, which were admitted into the record with no objection from the DOE.
The DOE conceded denial of FAPE for the school year at issue.[3] Although the DOE conceded denial of FAPE, the DOE representative proffered exhibits 1-6 yet declined to present a case or call witness.[4] The DOE cross-examined Parent’s witnesses and maintained that the equities do not favor the Parent.[5] Parties further submitted closing summations.[6] The undersigned IHO now renders this Findings of Fact and Decision upon review of all testimony and evidence admitted to the record.
JURISDICTION
A decision in this matter is being rendered pursuant to the IDEA and its implementing regulations in addition to the New York State Education Law and its implementing regulations. [7]
LEGAL FRAMEWORK
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) and is further defined as “educational instruction that is designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction.”[8] The Supreme Court has found that “[a] reviewing court may fairly expect those authorities [school district staff] to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” [9]
A board of education may be required to pay for educational services obtained for a child by the child's parent, if (1) the services offered by the board of education were inadequate or inappropriate, (2) the services selected by the parent were appropriate, and (3) equitable considerations support the parent's claim.[10] These three conditions constitute the Burlington/Carter framework employed in tuition reimbursement cases.
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 for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement.[11] The standard required is a preponderance of the evidence. [12]
FINDINGS OF FACT
Burlington/Carter Prong I: Failure to Provide a FAPE
A FAPE is offered to a student when: (a) the DOE complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA’s procedures, is reasonably calculated to enable the student to receive educational benefits. [13]
In this case, the DOE conceded that it denied the Student a FAPE for the 2021-2022 school year.[14] Consequently, the Parent is entitled to a presumption as to the truth of the asserted facts underlying claims set forth in the documentary evidence and testimony, to the extent such facts are credible and not contradicted by the hearing record. Accordingly, the credible, uncontroverted evidence and testimony establishes that the DOE denied the Student a FAPE through its failure to develop an appropriate program and placement for the Student for the 2021-2022 school year.[15] Therefore, Prong I of the Burlington/Carter framework is satisfied.
Burlington/Carter Prong II: Appropriateness of the Parents’ Unilateral Placement
When a parent unilaterally places their child in a private program and seeks funding and/or reimbursement for that program, they must demonstrate the program they have selected is appropriate to meet their child’s needs.[16] Parents are not barred from an award of tuition reimbursement or funding even if the private program does not meet the IDEA definition of a FAPE. The selected program need not employ certified special education teachers or develop its own IEP for the student, and parents’ selection of a program that has not been approved by the state does not bar reimbursement.[17] Parents need not show that a private placement provides every special service necessary to maximize their child’s potential, but only that it is likely to produce progress and not regression and provides “educational instruction specially designed to meet the unique needs of the . . . child, supported by such services as are necessary to permit the child to benefit from instruction.” [18]
The Student in this case is currently enrolled at the Private School. The Parent submitted ample evidence establishing that the Private School is an appropriate placement that provides the Student with educational instruction specifically designed to meet the Student’s unique educational needs, supported by services that are necessary to permit the Student to benefit from that instruction.
For example, the credible evidence describes the Private School as:
A small school that offers students with special needs (ages 5 to 14) a comprehensive and nurturing educational environment. The reading, writing, mathematics, social studies, science, and additional core academic subjects offered by our staff provides both whole group and individualized instructional to support the academic needs of our students. Our school uses Common Core curriculum modified to the student’s level of progress.
All related services are provided by the [the Private School]. This includes speech therapy, occupational therapy, physical therapy, and counseling. Staff members work with students individually and in small groups to address social, emotional, and behavioral needs which may impact their daily functioning. Topics such as initiating and maintaining conversation, interpersonal relationships, problem solving techniques, and decision making strategies are covered. [19]
The Principal testified via affidavit that the Student “has significant cognitive, academic, language, fine and gross motor skills delays. She has poor communication skills, including receptive and expressive language skills. Student is highly distractable and has difficulty focusing throughout the school day. Her academics were on an approximate pre-kindergarten to kindergarten level. Student learns at slower pace given her cognition and functioning level.” [20]
[Student’s] small class is equipped with a behavior program. She was in a 5-6 bridge class with peers close in age to her and who presented with similar social and emotional needs to hers and provided with 1:1 support. [21]
Gillingham techniques, Read Right Program, Lively Letters program from TLC, and Basal Readers.[22] Her reading curriculum was further modified using multisensory techniques…math was taught using a multi-modality approach…Emotion[al] regulation and working cooperatively in a group were also stressed in social skills class. [Student] did well in her social skills class as well as her group counseling classes.
[Student received] Speech Therapy two times weekly, 1:1, during the 2021-2022 school year with REDACTED CCC-SLP. There was consistent collaboration among her speech provider and classroom staff to ensure that her language goals were reinforced daily. Her therapy focused on receptive, expressive, phonology, decoding, articulation, and critical thinking skills.
[Student] received Occupational Therapy two times weekly with REDACTED OTR/L during the 2021-2022 school year. Her therapy sessions focused on letters and number formation, coordination, motor planning and visual perceptual skills training. She showed an increased tolerance to perform activities on a therapy ball in all positions without any fear. By the end of the year, she was able to roll back into supine on a therapy ball independently to reach for objects behind her. Student also improved in her ability to copy letters and had a better awareness of forming the letters. [23]
The evidence further shows that the Student is provided with “mainstreaming opportunities” in that “[s]tudents from neighboring schools would come to visit, have a short sensitivity training by our school psychologist, and then engage Private school students in tailor-made activities created by Private School and the mainstream school. Alternatively, Private School students would visit schools and be treated to a series of planned activities, games, and projects.” [24]
Accordingly, the uncontroverted evidence supports a finding that the Private School is the appropriate placement for the Student for the school year at issue, substantiated by Student’s documented progress:
This semester [Student] has made considerable progress socially and academically in the REDACTED grade at the [Private School. [Student] comes to school with a positive and upbeat disposition. She is a happy student who tries hard to focus and follow teacher directives. She has made substantial progress in her oral communication skills and contributes positively to class discussions and our morning meetings. [Student’s] speech and her ability to carry a conversation have improved since the beginning of the year. [Student] shows interest and is motivated to participate in class despite her learning difficulties. [25]
Based upon the foregoing, the undersigned IHO finds that the Private School is an appropriate placement for the Student for the school year at issue, as the Private School addresses the Student’s needs in an individualized manner and provides the Student with the necessary services to enable the Student to make progress.
Therefore, Parent has met the second prong of the Burlington/Carter framework for tuition funding and/or reimbursement.
Burlington/Carter Prong III: Equitable Considerations
When considering an award of tuition reimbursement, an IHO must also determine whether a balancing of the equities support the award, as “equitable considerations [relating to the reasonableness of the action taken by the parents] are relevant in fashioning relief.”[26] When a school district fails to provide a student with a FAPE and the private placement is found to be appropriate, “the district court enjoys broad discretion in considering equitable factors relevant to fashioning relief.”[27] Direct and prospective funding are appropriate remedies in due process proceedings seeking payment for unilateral placements.[28]
The hearing record establishes that the Parent provided the DOE with the requisite statutory notice[29] and incurred an obligation to pay tuition in the amount of $98,000 for the 2021-2022 academic school year, as evidenced by the tuition contract.[30] The Parent testified that he paid $1,000 towards tuition and was awarded a “scholarship” of $1,000.[31] The Parent further provided unrefuted testimony to establish that they cooperated with the DOE.[32]
It is not disputed that a portion of the Student’s educational program is comprised of religious instruction.[33] The DOE argues, “federal regulations make clear that funds for religion [are] prohibited[,]’” and tuition should therefore be reduced approximately 10%, as a significant portion of the Student’s program is religious in nature.[34]
The Parent argues that tuition should not be reduced pursuant to the holding articulated in Lemon[35], and in the alternative, a reduction of only 3% for prayer should be considered.[36] It is noted that the holding in Lemon was rejected by Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407. Nonetheless, the undersigned declines to delve into the complexities surrounding these cases. However, as aptly argued by the DOE, there exists no proposition that prohibits reduction of tuition for non-secular instruction.[37]
The Parent further cites SRO 96-014 in support of its position. However, in 96-014, a witness from the private school testified, “[private school] was operated under religious auspices…[witness] conceded that religious training and instruction were provided, but only to those children for whom it was appropriate. The child's teacher testified that the child received no religious training, because it would not have been appropriate for her.”[38] Conversely, in the instant case, the Private School’s religious classes/programs (holidays and customs and prayer), appear to be built-in to the curriculum itself, and the Student clearly participates. The Private School Principal testified that the aforementioned classes are religious in nature: “holidays and customs were taught daily…The class reviewed information about holidays, ways of observing, and differences in observing in different locations. [Student] also had Prayer for 15 minutes per day. For a total of 75 minutes per week.”[39]
Under the IDEA, a school district is not required to fund tuition for the religious portion of a program.[40] Furthermore, religious and cultural instruction does not fall within the school's duty to provide a disabled student with access to the general curriculum. Under the IDEA, the school must only address the student's individual needs to the extent it takes to provide that access.[41] The unrefuted evidence in this case, in the form of the Student’s schedule, Private School description, and the testimony of Principal establish that 10% of Student’s instruction is religious in nature. Therefore, the tuition award shall be reduced by 10%.
The DOE’s assertion that the Parent’s claim is time barred pursuant to the Statute of Limitations (SOL)[42] is rejected as untimely. The DOE representative raised the affirmative defense of SOL during cross-examination of the Parent on the second day of the instant hearing.[43] It has been held that affirmative defenses “such as the defense of the statute of limitations...require that they be raised at the initial hearing.”[44] Furthermore, the undersigned issued a Summary and Order on August 2, 2023, which issued clear directives regarding assertion of affirmative defenses and the timelines governing such.[45]
Accordingly, the DOE failed to establish that the equities do not favor the Parent and the Student is entitled to an award of tuition (reduced by 10%) at the Private School for the 2021-2022 school year.[46]
Attorney’s Fees
The DPC includes a claim for attorneys’ fees.[47] The IDEA does not authorize an administrative officer to award attorneys’ fees or other costs to a prevailing party, and entitlement, if any, to costs must be determined by a court of competent jurisdiction.[48]
Therefore, the undersigned IHO would be exceeding the permissible scope of authority by determining that Parent is the prevailing party entitled to costs. To the extent that Parent seeks reimbursement and/or payment of attorneys’ fees and costs from this IHO, such request is denied.
CONCLUSION
The DOE failed to provide the Student with a FAPE for the 2021-2022 school year. The Private School was the appropriate placement for the Student for the 2021-2022 school year and the Student is entitled to funding for the Private School for the 2021-2022 school year.
ORDER
Based on the foregoing, it is hereby:
1. ORDERED that the DOE shall, within thirty (30) days of this Order and upon proof of attendance, directly pay to the Private School the cost of tuition for the Student’s placement for the 2021-2022 school year, in a sum not to exceed $88,200, minus any monies paid by the Parent and/or scholarship assistance for tuition for the 2021-2022 school year;
2. IT IS FURTHER ORDERED that the DOE shall within thirty (30) days of this Order and upon proof of payment, reimburse the Parent for any monies paid to the Private School for the Student’s placement at the Private School for the 2021-2022 school year.
SO ORDERED.
DATED: October 15, 2023
ErynDeFontes
Impartial Hearing Officer
Eryn DeFontes, Esq.
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.
ADMITTED EXHIBITS Case Number: 248709
DOE Exhibits:
1. Due Process Complaint with email June 2, 2023 (6 pages)
2. Ten Day Notice August 18, 2021 (2 pages)
3. Individualized Education Program (IEP) June 2, 2021 (21 pages)
4. Psychoeducational Evaluation May 7, 2021 (4 pages)
5. PWN/SLL June 30, 2021 (15 pages)
6. PWN- Mandated Three-Year Reevaluation March 19, 2021 (7 pages)
Parent’s Exhibits:
A. Impartial Hearing Request 06/02/23 (6 pages)
B. Ten Day Notice + Confirmation 08/18/21 (4 pages)
C. Psychoeducational Evaluation Report 05/07/21 (4 pages)
D. Private School Program Description 2021-2022 (1 page)
E. Fall Progress Report Fall 2021 (7 pages)
F. Spring Progress Report Spring 2022 (7 pages)
G. Daily Schedule 2021-2022 (1 page)
H. Tuition Affidavit 07/06/22 (2 pages)
I. Tuition Contract 09/01/21 (1 page)
J. Affidavit of Parent (English) 08/17/23 (3 pages)
K. Affidavit of Parent (Russian) 08/17/23 (5 pages)
L. Affidavit of Principle 08/17/23 (7 pages)
IHO EXHIBITS
IHO i. Order 8/2/23
IHO ii. DOE closing 9/4/23
IHO iii. PARENT closing 9/12/23
IHO iiia. SRO 96014 7/9/96
Footnotes
[1] The Student’s classification is not in dispute.
[2] P-A-1; Tr. 21, 22 (Parent’s claim for transportation funding was withdrawn).
[3] Tr. 25:1-3
[4] DOE exhibits 1, 3 and 4 were precluded as duplicative.
[5] Tr 42:1-3.
[6] IHO ii, iii.
[7] 20 U.S.C. § 1400 et seq., 34 C.F.R. § 300 et seq., Educ. Law Art. 89 § 4404 et seq., 8 NYCRR § Part 200.
[8] See 34 C.F.R. § 300.13; Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
[9] Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. 386, 137 S. Ct. 988 (2017).
[10] See, School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993).
[11] NYS Educ. Law § 4404(1)(c).
[12] 20 U.S.C. §1415(i)(2)(C)(iii); see also Walczak v. Florida Union Free Sch. Dist., 142 F.3rd 119 (2nd Cir. 1998).
[13] Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005).
[14] Tr: 25:1-3
[15] See P-B through L.
[16] A.D. ex rel. E.D. v. Bd. of Educ. of City Sch. Dist. of New York, 690 F. Supp. 2d 193, 206 (S.D.N.Y. 2010) (citing Frank G. v. Bd. Of Educ. Of Hyde Park, 459 F.3d 356 at 364).
[17] Id. (citing Carter, 510 U.S. 7 at 14).
[18] Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007).
[19] P-D-1.
[20] P-L-2.
[21] P-L-3.
[22] P-L-4.
[23] P-L-4, 5.
[24] P-L-6.
[25] P-E-1; P-F-1.
[26] See, Frank G., 459 F.3d at 363-64; see also 20 U.S.C. § 1412(a)(10)(C)(iii).
[27] Gagliardo, 489 F. 3d 105 at 112, citing Carter, 510 U.S. 7 at 16.
[28] See, Connors v. Mills, 34 F.Supp.2d 795 at 805-806, 132 Ed. Law Rep. 767 (N.D.N.Y., 1998), Mr. & Mrs. A. ex rel. D.A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403 (S.D.N.Y. 2011).
[29] P-B.
[30] P-H; P-I.
[31] Tr. 155:12:15; P-J-2 ¶¶ 16, 17.
[32] P-J-2, 3.
[33] IHO ii 2-4; Tr. 42:8-19; 90:15-18. Holidays, customs and prayer amount to approximately 70 minutes per week.
[34] IHO ii 1-3. ([Student] attends school from 8:20 a.m. until 3:50 p.m. Monday – Thursday and from 8:20 a.m. until 12:35 p.m. on Fridays for a total of 2055 minutes (450 + 450 + 450 + 450 + 255). Ex. G. Religious instruction constitutes 195 minutes per week (45 + 45+ 45+ 45 + 15). Additionally, the school witness testified that at least one “mainstreaming” activity lasting one hour and 30 minutes was religious in nature. Therefore religious instruction constitutes roughly 10% of E.K.’s school week (195/2055 = 9.4%)).
[35] Lemon v. Kurtzman, 403 U.S. 602 (1971)
[36] IHO iii
[37] IHO ii-3.
[38] IHO iiia-6.
[39] P-G-1; P-L-6¶ 31;Tr. 42:8-19; 90:9-18. The Private School description bears a logo and statement, “[Private School ] an agency of the Orthodox Union, is dedicated to enhancing the life opportunities of Jewish individuals with disabilities.” P-D-1.
[40] See, Application of the NYC DOE relating to the provision of educational services to a student with a disability 11-037; 22-027; 14-129. See, e.g., 34 C.F.R. § 76.532(a)(1)
[41] See, M.L. ex rel. Leiman v. Smith, 867 F.3d 487, 497 (4th Cir. Aug. 14, 2017); See also, 20 U.S.C. §1414(d)(1)(A)(i)(II)
[42] Tr. 138:4-8.
[43] Id.
[44] See M.G. v. New York City Dep't of Educ., 15 F. Supp. 3d 296, 304, 306 [S.D.N.Y. 2014], [holding that the limitations defense is "subject to the doctrine of waiver if not raised at the initial administrative hearing" and that where a district does "not raise the statute of limitations at the initial due process hearing, the argument has been waived"].
[45] See IHO i. All motions or requests/applications (except extensions or objections to this Order) by either party shall be made in writing, at least five (5) calendar days before the scheduled hearing and shall include any affidavits or exhibits relied upon. If parties offer any motions or requests after this deadline, they will be deemed waived, and the undersigned IHO will not consider them.)”
[46] 10% reduction of $98,000 ($9,800-$98,000) = $88,200.
[47] Tr. 21, 22.
[48] See 20 U.S.C. § 1415(i)(3)(B); Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 402 F.3d 332 (2d Cir. 2005); see also Application of a Student with a Disability, Appeal No. 08-008 (March 31, 2008); Application of a Child with a Disability, Appeal No. 06-109 (Oct. 27, 2006).