NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
CORRECTED FINDINGS OF FACT AND DECISION[1]
| Case Number | 248869 |
|---|---|
| Student’s Name | [REDACTED] (Student) |
| Date of Birth | [REDACTED] |
| School District | New York City Department of Education (District) |
| Hearing Requested by | [REDACTED] (Parent) |
| Request Date/Date Complaint Filed | 9/26/2022 |
| Dates of Hearing | Not Applicable, Accelerated Review |
| Actual Record Close Date | 07/26/2023 |
| Date of Decision | 07/26/2023 |
| Date of Distribution | 07/26/2023 |
| Time Sensitive | Yes ☐ No ☒ |
| Impartial Hearing Officer | Teresa R. Nuccio, Esq. |
NAMES AND TITLES OF PARTIES REPRESENTATIVES
For the Student
[REDACTED], Esq.
For the New York City Department of Education
[REDACTED], Esq.
INTRODUCTION, JURISDICTION & PROCEDURAL HISTORY
On 09/26/2022, the student’s parent, through counsel, filed a due process complaint (DPC) against the district alleging procedural and substantive violations of the Individuals with Disabilities Education Act (IDEA) and Article 89 of the New York State Education Law[2] and the implementing regulations.[3] It is alleged that violations amounted to a denial of a free and appropriate education (FAPE) to the student for the 2022/2023 school year. Therefore, the parent unilaterally placed the student in a 12-month program in a private school and now seeks tuition reimbursement and direct funding.
More than 196 days have elapsed since the filing of the DPC without a hearing officer being appointed, giving rise to the parent’s right to request an Accelerated Review.[4] On 06/26/2023, the parent made such a request. By requesting the Accelerated Review, the district shall be deemed to have denied the student a free appropriate public education because of the delay in appointing an impartial hearing officer,”[5] thereby determining Prong I of the Burlington/Carter framework against the district. The only remaining issues to be determined by this tribunal are whether the parent’s unilateral placement is appropriate and whether the equities favor a full award of tuition reimbursement.
The undersigned, a certified New York State Special Education Impartial Hearing Officer (IHO), employed by the New York City Office of Administrative Trials and Hearings, was appointed to adjudicate this Accelerated Review on 06/27/2023.[6] A scheduling order was sent to the parties on 06/28/2023.[7]
The parent timely submitted the “Proposed Order of Relief” and the supporting documentation on 07/14/2023.[8] The district served objections and disclosure on 07/18/2023, and the parent served a response on 07/20/2023.[9]
The IHO admitted the parties’ exhibits into evidence as reflected in Appendix B, and certified the record within two business days of the parent’s response on 07/24/2023.[10] A final decision in this matter was due by 07/26/2023.[11] The final determination must be in the form of (a) the order of relief proposed by the parents; (b) the order of relief proposed by the parents as modified by the impartial hearing officer based upon the written record; or (c) a finding that no relief is warranted based upon the written record.[12]
Upon reviewing the entire certified written record in this matter, the arguments and assertions of the parties, and my consideration of applicable law, I make a final determination granting an order of relief proposed by the parent as modified by the IHO based on the written record.[13]
FINDINGS OF FACT
I) RULINGS ON OBJECTIONS
a) The District’s Objections to the Accelerated Review as Unconstitutional and the Parent’s Response.
This tribunal will first address the district’s constitutional argument. The district argues, inter alia, that 8 NYCRR 200.5 [o] is unconstitutional as it creates an irrebuttable presumption that the student was denied a FAPE. This presumption (a) deprives the district of due process under the IDEA, (b) deprives the district of the opportunity to confront witnesses, and (c) potentially does not provide the student with an IEP/IESP appropriately tailored to the student’s unique needs to guarantee them a FAPE.[14]
In response, the parent argues that the constitutionality of 8 NYCRR § 200.5 [o] is beyond the jurisdiction of this tribunal. Any challenge to the regulation must be brought before a Court of competent jurisdiction.[15] This IHO agrees with the parent, and the objection is overruled. The district has preserved all objections concerning the constitutionality of 8 NYCRR § 200.5 [o] for the State or Federal Court review.
It is also noted that based on the Findings of Fact, the district’s constitutional argument is academic under the facts of this case. The district’s evidence is insufficient to demonstrate that (a) the district offered an appropriately tailored FAPE to the student; (b) the private school’s program is not appropriately tailored to the student’s unique needs; (c) a 12-month private school program is inappropriate, and (d) the equities do not favor the parent.
b) The District’s Objections to the Parent’s Evidence and the Parent’s Response.
The district argues that the parent failed to bring to the tribunal’s attention that a 10-month IESP was created on 05/12/2022 for the 2022/2023 school year. Therefore, the district objected to the 2019 preschool IEP (P-C), arguing that it should not be admitted into evidence as irrelevant (IHO-II:¶6). In response, the parent argues that P-C is the most recent IEP document that the parent received. It is further argued that the 05/12/2022 IEP is irrelevant as Prong I has been resolved against the district as a matter of law (IHO-III:¶8).
The district’s objection is overruled, and exhibit P-C is admitted into evidence. Even though the 01/09/2020 IEP has no probative value on the appropriateness of the parent’s unilateral placement, it is relevant to the student’s educational history. I also find that the parent’s response to the district’s objection to exhibit P-C is without merit.[16]
The district also objected to the admission of the parent’s exhibit P-J, the Affidavit of the School Supervisor (IHO-II: ¶7). The objection is based on the inability to confront and cross-examine the witness on what the district deems “self-serving testimony.” Therefore, the district is deprived of the opportunity to explore the appropriateness of summer tuition. In response, the parent argues that P-J is relevant on the issue of the appropriateness of the unilateral placement.
I find that the affidavit is credible, as supported by the student’s most recent objective data within the evaluations and assessments.[17] Therefore, the district’s objection is overruled and preserved for a State or Federal Court review. The parent’s exhibit P-J is admitted as evidence.[18]
c) The Parent’s Objections to the District’s Evidence
The parent objects to the admission of the district’s exhibits 1 through 4 because the district is attempting to prove that the student was not denied a FAPE in the 05/12/2022 IESP. Therefore, these exhibits are irrelevant as the denial of FAPE has been determined in the parent’s favor as a matter of law.
The objections are overruled, and the district’s exhibits 1 through 4 are admitted as evidence. The exhibits are relevant to the balancing of the equities. However, the exhibits will be afforded weight and relevancy as determined by this IHO.
II) THE EVIDENCE
a) The DPC & the Parent’s Proposed Order of Relief
The Proposed Order of Relief sets forth the following:
The Parent is seeking an appointed Impartial Hearing Officer to order the following relief:
1. An order for the Department of Education to directly fund the cost of [REDACTED]’s tuition at the private special education program in the [REDACTED] Program for the summer of the 2022-2023 school year for a total of $22,977 [italics added];
2. An order for the Department of Education to reimburse the Parent for the cost of [REDACTED]’s tuition at the private special education program in the [REDACTED] Program for the summer of the 2022-2023 school year for a total of $1,023.00 [italics added];
3. Such other and further relief as is appropriate.[19]
However, the DPC’s “Proposed Solution” seeks prospective funding of private school tuition for “the full-time extended twelve-month 2022/2023 school year” and an order of pendency for the entire 2022/2023 school year based on the last preschool Individualized Education Program (IEP) developed on 01/09/2020.[20]
This request for prospective funding for the entire 2022/2023 extended school year is not supported by the financial affidavit from the school[21] or requested in the proposed order of relief.[22] The affidavit only states that the total outstanding balance due is for the summer months of July and August 2022.[23] Therefore, I find that the documentary evidence does not support this request for relief and that portion of the DPC seeking an order for tuition funding for September 2022 through June 2023 is dismissed without prejudice.
d) The Parent’s Evidence: The Evaluations and 01/09/2020 IEP
The student’s last comprehensive evaluation was an Early Intervention Multidisciplinary Evaluation (MBE) conducted in 10/2019 and 12/2019.[24] The MBE recommended occupational therapy and parent training in sensory techniques.[25] The report also recommended goals for improving attention span and visual motor skills and increasing ADL [activities of daily living] independence.[26]
The 01/09/2020 IEP recommended, on a 10-month basis, Special Education Itinerant Teacher Services (SETSS) on a 1:1 basis, five sessions a week, 60 minutes each, and Occupational Therapy (OT) on a 1:1 basis, two sessions a week, 30 minutes each. The services were to be received in the childcare program of the parent’s choice.[27] The IEP did not recommend a positive Behavior Intervention Plan (BIP) or other strategies to address the documented behaviors impeding her development across all domains.[28]
e) The Student’s Educational Placement History
The DPC alleges that the parent disagreed with the 01/09/2020 IEP and unilaterally enrolled the student in the private school in a 12:1:1 class for the 2020/2021 school year, filed a due process complaint, and was awarded full tuition funding and reimbursement for a 12-month school year. The parent was awarded the same relief for the 2021/2022 school year.[29] At the commencement of the 2022/2023 school year, the student was five years of age and entering Kindergarten or “Upper K (Pre1A)” in the private school.[30]
The DPC alleges that for the 2022/2023 school year, the student still needed her private school program in a full-time special education classroom to meet all her academic, social, and behavioral needs. The student struggles with motivation, maintaining focus, impulsiveness, multi-step directions, fidgeting, self-regulation, and defiance with authority and non-preferred tasks. She does not benefit from a reward system since she cannot control her impulses to receive a reward.[31]
When the student faces a non-preferred task or someone in a position of authority, she will elope as a means of escape and engage in excessive crying and tantrums. The behavior, at times, escalates to physically hurting her peers. The student will whine or grab things to meet her needs because she has difficulties using words for reciprocal communication and does not consistently respond to her name or make eye contact when speaking with someone.[32]
Socially, the student struggles with appropriate interaction with her peers, i.e., inappropriately touching her peers, maintaining appropriate distance/personal space, taking items that do not belong to her, touching everything, and not understanding how her behavior and actions affect others.[33]
Based on her unique needs, the student requires individualized support, modified and simplified instruction and direction, repetition, review, modeling, prompting, social skills instruction, and occupational therapy for an extended twelve-month 2022-2023 school year.[34]
The parent signed the private school contract on 06/21/2022,[35] paid a total deposit of $1,023.00,[36] and served a ten-day notice (TDN) on 07/05/2022 notifying the district that the student was not provided with “a proper or adequate educational and school placement for the upcoming extended twelve-month 2022/2023 school year” as well as the parent’s intention to place the student in private school unilaterally and then seek tuition reimbursement.[37] The district has not come forward with evidence that it responded to the TDN.
f) The Parent’s Affidavit Testimony
The parent testified that she did not receive the Procedural Safeguards Notice for the 2022/2023 school year. She notified the district of her intention to unilaterally place the student in a private school and seek direct tuition funding since she could not afford to pay it prospectively and seek reimbursement.[38] The affidavit also states that the parent is seeking direct funding for “the tuition charged to me by the [private school] for the summer of the 2022-2023 school year, less the portion of instruction related to religious instruction.”[39]
I find the parent’s testimony regarding the procedural safeguards to be credible. The district did not impeach this statement with documentary or affidavit evidence to the contrary. The district also did not submit evidence that the parent was advised of her right to request updated evaluations and assessments to determine the student’s eligibility for either school-age special education services or placement, including a 12-month program.
g) The School Supervisor’s Affidavit Testimony
The school supervisor holds master's degrees in (a) general education, special education, and literacy, (b) a master’s degree and license as a principal/school building leader, and (c) a master’s degree and license as Board Certified Behavior Analyst (P-J:¶1). He has worked in special education for more than 20 years and as a behavior analyst since 2007 (P-J:¶2). He supervised the private school’s summer program for the 2022/2023 extended school year.
The supervisor’s responsibilities include (a) overseeing the student’s curriculum and progress, (b) ensuring her behavioral and academic needs are being met, (c) creating an education plan and aligning it with the school’s methodology, student’s grade level and the classroom, and (d) ensuring the student’s plan is coordinated with the related service providers (P-J:¶4). The student’s program, as modified to meet her special education needs, is aligned with the New York State Common Core Curriculum, the methodologies of ABA (P-J:¶8 & 17), and the student’s IEP (P-J:¶9, see also P-D). The private school also conducted a Functional Behavior Assessment and implemented a Behavior Intervention Plan and Treatment Plan (P-J:¶11 & 17; P-H:1-17).
The student’s class has a corresponding general education class that allows her to integrate with her general education peers for a social skills program and during meal breaks (P-J:¶6). This allows the student to generalize social and behavioral skills across less restrictive/structured environments (P-J:¶7).
The supervisor testified that due to the student’s communication struggles, she would resort to physically aggressive behavior and tantrums to access her desires (P-J:¶14). This behavior adversely impacts the student’s ability to benefit from learning activities (P-J:¶15). Specifically, she struggled with counting proficiency, math vocabulary, basic number, and mathematical concepts, word problems, identifying basic shapes, labeling coins, and basic concepts (P-J:¶16).
In reading, the student also struggles with (a) recognizing sound to the letter alphabetic sounds other than the letters in her name, (b) the difference between the main idea and details of a story, (c) the difference between fiction and non-fiction, and (d) the difference between synonyms and antonyms. She also struggles with writing and fine motor skills, such as using paint, markers, crayons, stickers, etc. (Id.).
The student benefits from positive reinforcement, access to favorable activities, scheduled breaks, social skills training, prompting, and task analysis at the private school (P-J:¶21). These management strategies are integrated within the student’s 12:1:1 classroom, which is highly structured to maximize individual attention (P-J:¶17 & 20).
The supervisor also testified that based on the student’s severe social and behavioral challenges, she requires the consistency and structure of a 12-month extended school year to prevent substantial regression (P-J:¶22). The program has allowed the student to make academic and functional progress in math and reading, decreased aggression and noncompliance, and increased communication and ability to follow instructions (P-J:¶23; P-H:18-21).
h) The District’s Evidence: The 05/12/2022 IESP
The student’s disability classification is Autism.[40] She scored in the average range of intellectual functioning – a verbal score of 99 and a nonverbal score of 99. However, she has difficulty sustaining attention when reading and eating. She has qualitative impairments of her cognitive skills, i.e., short attention span, disorganization, and poor problem-solving skills.[41] The IEP also notes that (a) her “play” is repetitive with little variation, (b) she refuses to attend to modeling or prompting, (c) she is unable to adhere to the parameters of structured tasks and learn new concepts, and (d) she unable to vary the use of objects.[42]
The parent reports, among other things, that the student is unaware of her surroundings and becomes disoriented about time and place, cannot make independent decisions, has poor body awareness, and often walks into visible items. The parent believes the student would benefit from special education teacher support services (SETSS), occupational therapy, and a behavioral paraprofessional.[43]
The student is also very self-directed and expects immediate satisfaction of her needs. She is prone to frequent and prolonged tantrums if her needs are unmet. She is “in constant motion, climbing in high places,” further evidencing a lack of any awareness of danger.[44]
The IESP recommends five (5) direct group periods of SETSS, two (2) individual 30-minute sessions of OT per week, four (4) group/individual 60-minute sessions of Parent Training and Counseling per year, and a daily full-time Individual Behavioral Support Paraprofessional.[45] The PWN dated 05/11/2022 stated that the only other placement option considered was an Integrated Co-Teaching (ICT) class but rejected as the student would be parentally placed in a private school at the parent’s expense.[46] Based on the failure to consider only one placement option, the district failed to consider the full continuum of available services and placement for the student.[47] The conference minutes do not support the statement in the PWN that the parent was placing the student in a private school at her own expense. The minutes are devoid of any substantial discussion of the student’s needs and the continuum of services considered.
The minutes from the CSE meeting state the following:
Teacher Progress Reports: N/A
Teacher’s Academic Goals Discussed: N/A
ST Progress Reports: N/A
ST Goals Discussed: N/A
OT Progress Reports: N/A
OT Goals Discussed: N/A
Counselor Report: N/A
Counselor Goals: N/A
PT Progress Report: N/A
PT Goals: N/A
Present Level of Functioning Discussed: Yes
Goals Discussed: Yes
Recent testing or Observation available: Classroom Observation
Recommendation Discussed: SETSS 5, OT, Autism Classification, Continue Paraprofessional
Parent’s Comments: [The student] has a paraprofessional given by the Dept of Education. She has behavioral problems in school and at home. She is in a small class. She needs a lot of redirection. The concerns are behavioral. She receives ABA, OT, and she has a paraprofessional. She is receiving all of the services in her school. The school’s name is [REDACTED].[48]
The PWN states in the section entitled “Evaluation/Procedure/Assessment/Record/ Report” states that the following were considered:[49]
| Evaluation/Procedure/Assessment/Record/Report | Date |
|---|---|
| Classroom Observation | 12/11/2019 |
| Occupational Therapy | 10/27/2019 |
| Psycho-educational | 12/10/2019 |
| Social History | 12/10/2019 |
| Speech and Language | 10/18/2019 |
| Developmental Evaluation | 10/20/2019 |
Based on the review of the 05/12/2022 IESP, the conference minutes, and the PWN, I find that the 05/12/2022 IESP does not impeach the parent’s evidence that the unilateral placement is appropriate. The district’s reliance on assessments and evaluations conducted almost three years before determining a school-age special education placement and need for services is of little to no probative value. The 05/12/2022 IESP is not based on present levels of performance, current progress reports, or a current classroom evaluation.[50] Therefore, even if the district could cross-examine the school supervisor, the parent's objective data-driven assessments and evaluations based on the student’s present levels of performance, current progress reports, and observations independently support the finding that unilateral placement is appropriate.[51]
Therefore, the parent was also justified in rejecting the patently deficient 05/12/2022 IESP.
i) The District’s Response to the Parent’s Proposed Order of Relief and the Parent’s Response.[52]
The district argues that the IDEA does not mandate the district to provide a FAPE to a parentally placed student. Rather, the district’s only obligation is to provide special education services to students parentally placed in private schools who are residents of the state upon the parent’s written request.[53] Further, the parent did not request an IEP for the 2022/2023 school year; thus, the IESP 10-month program recommendation was appropriate.[54] However, should the IHO consider the parent’s request for a FAPE in a private school, the parent has neither not met their burden of proof that the private school is the appropriate placement nor that the equities are in their favor.[55]
The district argues it has met its burden of proof because the evidence demonstrates that (a) the 05/12/2022 IESP demonstrates that the student does not need a 12-month program, (b) $12,000.00 a month is inflated since the student only attended 21 days in July and 14 days in August,[56] and (c) the parent did not cooperate with the CSE and act in good faith.[57]
In response, the parent has argued that the evidence establishes that (a) the student is entitled to a 12-month program in a private school, (b) the program is the appropriate placement, (c) the fact that the parent signed the contract before serving a TDN does not defeat the right to reimbursement, and (d) although the tuition is not excessive, the parent cannot afford the tuition.[58] The affidavit of the school supervisor establishes that the program is tailored to meet the student’s unique special education needs because a student with her learning profile is susceptible to substantial regression without continued structure throughout the summertime.[59]
Except on the amount of tuition reimbursement and funding, the IHO finds for the parent based on the evidence in the written record.
First, the district’s argument that the parent did not request an IEP is unsupported by the conference minutes. The conference minutes are bare as to any substantive discussions regarding whether the student should continue to attend a 12-month program in a private school. Regardless, the TDN notified the district that the parent (a) disagreed with the recommendation of a 10-month IESP and (b) would be seeking an IEP placing the student in a 12-month private school program. The TDN stated as follows:
Please be advised that my child, [student], has not received a proper or adequate educational and school placement for the upcoming extended twelve-month 2022-2023 school year. Please be advised that unless this issue can be resolved, I intend to unilaterally place my child in the private special education program of [private school], for the extended 2022-2023 school year, and I will commence proceedings to seek tuition funding and/or reimbursement from the District for this program [P-I-2] [italics added].
Therefore, I find that the district was on notice that the parent was not seeking extended school year services for her child as a parentally placed student under Education Law § 3602-c. Accordingly, this argument is without merit.
Next, I find that (a) since the 05/12/2022 IESP was not developed with current assessments and evaluations, it is of little to no probative value and fails to rebut the parent’s evidence that the student requires a 12-month program in the unilateral placement; (b) since the district did not respond to the TDN, a reduction in tuition reimbursement for July 2022 is not warranted; and (c) since the summer session ended on 08/18/2022,[60] charging $12,000.00 for three weeks in August 2022 is excessive. Therefore, the proposed order is modified to reflect a reduction in the amount awarded for direct tuition funding and reimbursement for the month of August 2022 only. Based on this finding, the district’s argument that the student is not entitled to a FAPE under Education Law § 3602-c is not only without legal merit,[61] it is rendered academic.
I have considered the district’s remaining arguments and also find them without merit.
LEGAL FRAMEWORK AND ANALYSIS
A) Burdens of Proof, Persuasion, and Production
Burdens
The school district carries the burden of proof, including the burdens of persuasion and production, in due process hearings commenced under the IDEA and Education Law § 4404, except in cases where the parent is seeking tuition reimbursement for a unilateral placement.[62]
The mechanics of decisions in tuition reimbursement and direct funding cases have evolved from the two United States Supreme Court cases of Sch. Comm. of Burlington, Mass. v. Dep’t of Educ. of Mass., 471 U.S. 359 (T1985) and Florence Cnty. Sch. Dist. Four v. Carter, 510 U.S. 7 (1993), which have morphed into the “three-prong” analytical framework that has come to be known as the “Burlington/Carter” test or analysis. When considering an award for tuition reimbursement and funding in favor of the parents, a tribunal must use this framework to determine that (1) the school district’s proposed placement was inadequate or inappropriate, (2) the parent’s alternative private placement is appropriate to meet the student’s needs, and (3) the equitable considerations support the claim.
The party who carries the burden must establish an entitlement to a judgment in their favor by a preponderance of the evidence,[63]to wit: evidence that is of greater weight or more convincing than the evidence offered in opposition to it.[64]
I hold that the district failed to meet its burden that the parent’s unilateral placement in a 12-month private school program is inappropriate and that the equities favor the parent to the extent set forth herein.
(ii) Default by the District
The IDEA does not specify default as the penalty against the district.[65] An order granted on default would subvert the administrative process and place the student without regard to the evidence of their actual needs.[66] This is because the IDEA intends to ensure an “appropriate education,” not one that provides everything the parent desires.[67] Therefore, an IHO or Court must thoroughly examine the record even when the district defaults in some way.
Here, this decision is not being awarded on default. Rather, the Commissioner’s Regulation assigns an irrebuttable presumption against the district because of its failure to assign the matter to an IHO in over 196 days. The district committed a procedural violation of the IDEA by failing to timely assign an IHO to conduct a hearing and deprived the student of her IDEA due process rights to a hearing within 75 days of filing the DPC. This IHO’s determination on Prong II and III is made after thoroughly reviewing the entire written record to ensure that the student receives an appropriate education tailored to her unique needs.
B) Free and Appropriate Public Education
(i) Prong I of the Burlington/Carter Framework
The purpose of the IDEA[68] is to provide a FAPE tailored to the unique needs of the disabled student through an IEP.[69] Therefore, school districts must implement “extensive procedural requirements to protect the rights of the parents, guardians, and the child, including the right to be notified, inter alia, of a change in the child’s educational placement.”[70]
A tailored FAPE consists of specifically designed instruction that must meet the child’s unique needs in all educational aspects during classroom instruction[71] and prepare them for further education, employment, and independent living.[72] This includes personalized instruction with sufficient related and other supportive services to assist the student in benefiting from special education to derive an educational benefit, achieve passing marks, and advance grade to grade.[73] This personalized instruction must also “be appropriately ambitious in light of [the student’s] circumstances”[74] to (a) “enable the student to be involved in and make progress in the general education curriculum”[75] and (b) open the door of public education to a disabled child in a meaningful way such that it is likely to produce progress, “not regression,”[76] or only “trivial advancement.”[77]
In sum, a Court or IHO must conduct a two-prong analysis, i.e., whether the school district complied with the procedural requirements in the IDEA and b) whether the IEP as developed is reasonably calculated to enable the child to receive educational benefits.[78]
This prong has been determined as a matter of law against the district. Therefore, an analysis of the 05/12/2022 IESP is rendered moot.
(ii) Prong II – Appropriate Unilateral Placement
The parents have the burden to establish by a preponderance of the evidence[79] that the chosen unilateral placement is appropriate, to wit: that it provides educational instruction specifically designed to meet the student’s unique special education needs.[80] However, the private school placement “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements.”[81] The parents must demonstrate that the private school placement is reasonably calculated to enable the child to receive educational benefits to likely produce progress, not regression.[82]
Therefore, “[n]o 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 prove that a child receives an educational benefit. Still, courts assessing the propriety of a unilateral placement must 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.”[83]
Here, as detailed in the curriculum, the school supervisor’s affidavit, and the student’s assessments, the unilateral placement provides educational instruction specifically designed to meet the student’s unique special education needs.[84] The personalized instruction, together with the related services, BIP, and other supportive services, assist the student in benefiting from special education and allow her to (a) derive an educational benefit and (b) achieve passing marks and advance grade to grade.[85] It is appropriately ambitious in light of her circumstances,[86] enables her to interact with general education students,[87] opens the door to public education, and is likely to produce progress, not regression.[88]
The 05/12/2022 IEP based on preschool evaluations does not rebut the parent’s evidence. A preschool student with a disability as defined in Education Law § 4410 (1) (i) must meet two criteria to be eligible for special programs and services to access appropriate educational opportunities, i.e., (1) is a preschool student who is eligible to receive preschool programs services, and (2) because of mental, physical, or emotional reasons has been identified as having a disability.[89]
Unlike school-age students with disabilities, preschool students are not classified with one of the 13 disability classifications set forth in 8 NYCRR § 200.1 [zz]. Instead, a preschool student shall either exhibit (a) the criteria for one or more of the 13 disability classifications, (b) a significant delay or disorder in one or more functional areas related to cognitive, language and communicative, adaptive, social-emotional, or motor development which adversely affects the student's ability to learn and, (c) when reviewed in combination and compared to accepted milestones for child development, demonstrate varying percentages of functional delays.[90] In sum, the yardstick for eligibility for preschool services is one or more developmental delays. The student is not assessed academically for their ability to access the curriculum and advance from grade to grade.
In contrast, a school-age student with a disability means a student, as defined in Education Law § 4401 [1] and who also, because of mental, physical, or emotional reasons, (1) can only receive appropriate educational opportunities from a program of special education; (2) has been identified as a disability; and (3) meets the criteria of one of the following 13 disability classifications.[91] “Special Education” is defined as “specially designed instruction which includes special services or programs,” such as special classes, transitional support services, resource rooms, direct and indirect consultant teacher services, transition services, assistive technology devices, travel training, home instruction, and special teachers.”[92]
Further, when a student becomes school-age [i.e., five years old and entering kindergarten], and before making a determination of determining eligibility for special education services, the school district must notify the child’s parents of their right to request an assessment.[93] The IDEA and State law make clear that the school district must evaluate a student “[c]onsistent with federal and state regulations, the CSE, consisting of a group of qualified professionals and the child’s parent(s), must review existing evaluation data on the child, including information provided by the parents, and current classroom-based assessments and observations from teachers and other related service providers.”[94] In conducting the evaluation, the school district must also “(i) ensure the evaluation is comprehensive; (ii) consider a student’s initial or most recent evaluations; (iii) use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information; and (iv) assess the child in all areas of suspected disability.”[95] An evaluation of a student must be sufficiently comprehensive to identify all of the student’s special education and related service needs, whether or not commonly linked to the disability category in which the student has been classified.[96] Here, the district complied with none of these statutory requirements.
Accordingly, as stated above, the district’s exhibits “1” through “4” fail to rebut the parent’s prima facie showing that the private school is the appropriate placement. The 05/12/2022 IEP and the CSE’s recommendations were not based on present performance levels, the student’s readiness for kindergarten, or assessments in any area of disability.
Therefore, I find that the special education program consisting of an inclusive classroom with a student-to-teacher ratio of 12:1:1 with BCBA supervision, music therapy, counseling, Speech-Language Therapy twice a week for 30 minutes each on a 1:1 basis, and Occupational Therapy twice a week for 30 minutes each on a 1:1 basis to be the appropriate education placement for the student.[97]
(iii) Prong III – Equities (Prospective Direct Funding of Tuition)
When parents lack financial resources, they may seek direct prospective tuition funding, a relief encompassed by the equitable remedial powers inherent in the IDEA. Still, they must have a legal obligation to pay the tuition.[98] However, even if parents establish a right to either reimbursement or prospective tuition funding under the IDEA, “courts retain discretion to reduce the amount of a reimbursement award if the equities so warrant.”[99]
To make that equitable determination, a hearing officer may consider many factors, i.e., whether (a) the unilateral withdrawal of the student from the public school was justified[100] and with adequate notice to the district,[101] (b) the amount of private school tuition was reasonable, (c) the parents availed themselves of need-based scholarships or other financial aid from the private school and (d) there was any fraud or collusion in generating/inflating the tuition to be charged to a district, or the arrangement with the private school was fraudulent or collusive in any other respect.[102]
When assessing the equities, a major consideration is whether the parents have cooperated with the district throughout the IEP process to ensure their child receives a FAPE.[103] Specifically, equitable considerations include a parent’s participation in IEP meetings, visits to the proposed school placements, and notification of their unilateral placement decision to the district.[104]
In New York, the district has the burden to prove that the equities do not favor the parent. Still, the parents must identify the specific remedy they seek so that the IHO can craft an appropriate award.[105] The need to specify a remedy is akin to a pleading requirement to provide the district with fair notice of the claim and an opportunity to prepare a defense.[106] If the district meets this burden, the burden of proof does not shift to the parent. However, absent rebuttal evidence by the parent, the hearing officer will be constrained to find for the district.
Here, the district has not come forward with evidence of fraud, collusion, or a lack of cooperation by the parent with the CSE. Specifically, the district did not submit evidence that the parent was provided with copies of the procedural safeguards and advised of her right to updated evaluations but then failed to request the same before the 04/13/2022 CSE meeting to assist in developing an appropriate IEP or IESP.
Next, under the facts of this case, even though the parent enrolled the student before serving the TDN, this does not defeat her right to reimbursement of her deposit and direct tuition funding because the district failed to address the parent’s concerns. Had the district responded, and the parent rejected the proposed remedy, a per diem deduction would have been appropriate. However, the inquiry does not end there. Since the school was only in session for three weeks in August, $12,000.00 is excessive. Therefore, because the school was in session for four weeks in July, I am calculating the tuition at $3,000.00 per week and awarding tuition reimbursement of $12,000.00 for July and $9,000.00 for August. Finally, no deduction is made for religious instruction since neither the curriculum nor the school’s supervisor’s affidavit state that religious instruction is part of the summer program.[107]
Since the contract and affidavit of payment have been submitted with the parent’s exhibits, the parent does not need to resubmit these documents to the implementation unit.
ORDERS
NOW, based upon the foregoing, it is hereby,
ORDERED that the parent’s Proposed Order of Relief as modified by the IHO is granted, and it is further
ORDERED that the District shall directly fund the tuition for the month of July 2022 in the amount of $12,000.00 and remit payment to the private school within 35 days, and it is further
ORDERED that the District shall fund the tuition in the amount of $9,000.00 for the month of August 2022 as follows:
(a) The District shall directly remit payment of the outstanding tuition for the month of August 2022 in the amount of $7,977.00 to the private school within 35 days, and
(b) The District shall directly remit reimbursement of the deposit to the parent in the amount of $1,023.00 for the balance of the tuition for the month of August 2022 within 35 days, and it is further
ORDERED that the Parent’s claim in the DPC for direct tuition funding for September 2022 through June 2022 is denied without prejudice, and it is further
ORDERED that the Parent’s demand for an order of pendency for the 2022/2023 school year is denied as moot.
Dated: 07/26/2023
SO ORDERED,
Teresa R. Nuccio, Esq. (Digitally Signed)
TERESA NUCCIO, ESQ.
Impartial Hearing Officer
APPENDIX A
REDACTION PAGE
| Student | [REDACTED] |
|---|---|
| Date of Birth | [REDACTED] |
| Parent | [REDACTED] |
| District | [REDACTED] |
| Private School | [REDACTED] |
| School Director | [REDACTED] |
| School Supervisor | [REDACTED] |
| Speech Therapist | [REDACTED] |
| Occupational Therapist | [REDACTED] |
| School Counselor | [REDACTED] |
| BCBA | [REDACTED] |
APPENDIX B
PARENT EXHIBITS
| Exhibit | Document Description | Date | Pages |
|---|---|---|---|
| A | Request for Due Process Proceeding and Notice of Appearance | 8/12/2022 | 9 |
| B | Evaluations of Student with Summary (10/18/2019-10/27/2019) | Various | 26 |
| C | IEP | 01/09/2020 | 14 |
| D | Student Contract, Curriculum, and Program Description | 06/21/2022 | 13 |
| E | Affirmations regarding Tuition Breakdown and Payments | 07/12/2023 | 2 |
| F | Curriculum Schedule | Summer 2022 | 2 |
| G | Student Attendance | Summer 2022 | 1 |
| H | Assessments, Plans, and Reports | Various | 34 |
| I | Ten Day Notice | 07/05/2022 | 2 |
| J | Affidavit of School Supervisor | 07/14/2023 | 8 |
| K | Affidavit of Parent | 07/14/2023 | 2 |
DISTRICT EXHIBITS
| Exhibit | Document Description | Date | Pages |
|---|---|---|---|
| 1 | IESP | 05/12/2022 | 13 |
| 2 | IESP Minutes | 04/13/2022 | 2 |
| 3 | IESP Attendance Sheet | 04/13/2022 | 1 |
| 4 | Prior Written Notice | 05/11/2022 | 7 |
IHO EXHIBITS
| Exhibit | Document Description | Date | Pages |
|---|---|---|---|
| I | Parent’s Proposed Order of Relief | 07/14/2023 | 1 |
| II | District’s Objections | 07/18/2023 | 10 |
| III | Parent’s Response Brief | 07/20/2023 | 8 |
| IV | Scheduling Order | 06/28/2023 | 3 |
Footnotes
[1] The correction appears on page 24. The class ratio was corrected to read “12:1:1” instead of “12:1:2.”
[2] See 20 U.S.C. § 1415 [f], and New York State Education Law §§ 4404 [1]; see Ex. P-A
[3] See 34 C.F.R. § 300 et seq. and 8 NYCRR § 200.5 et seq.,
[4] 8 NYCRR § 200.5 [o]
[5] 8 NYCRR § 200.5 [o] [2]
[6] 8 NYCRR § 200.5 [o] [3] [i]
[7] IHO-IV and 8 NYCRR § 200.5 [o] [3] [ii] and [iii]
[8] 8 NYCRR § 200.5 [o] [3] [iii]; IHO-I
[9] 8 NYCRR § 200.5 [o] [3] [iv] and [v]; IHO-II & III
[10] 8 NYCRR § 200.5 [o] [3] [vi]
[11] 8 NYCRR § 200.5 [o] [3] [vii]
[12] 8 NYCRR § 200.5 [o] [3] [vii] [a]-[c]
[13] 8 NYCRR § 200.5 [o] [3] [vii] [b]
[14] IHO-II:1-3
[15] IHO-III: ¶6
[16] The argument that the 01/09/2020 IEP was “the most recent IEP document the parent received” is unsupported by the parent’s affidavit. The parent’s affidavit omitted that she and the student’s grandparent participated in the 04/13/2022 CSE (DOE-3) meeting or never received the 05/12/2022 IESP. The generic statement in the unsworn TDN served by the law firm is insufficient to support this argument (P-I-2).
[17] P-H
[18] The parent’s response entitled “Admission of Exhibit F Affirmations” is without merit (see ¶9). Paragraph 9 states that, “The DOE objects to the inclusion of Parents Exhibit F on the grounds that they cannot question the Witness on the calculations of the cost of the religious portion; however, that is the nature of an accelerated review. Additionally, the School Supervisor testified that the portions of the Student’s schedule that are religious in nature are identified in the Student’s Curriculum Schedule As Hebrew (See P-Ex I-8 at P-24).” It is noted that Exhibit F is not affirmation, and Exhibit I is not the student’s curriculum. It is also noted that the district has not made this argument or referenced the non-existent exhibits.
[19] IHO-I and P-E
[20] P-A-3:¶2&3 (Since the matter is pending more than 196 days, the request for an order of pendency is moot. [P-A-3:¶1]).
[21] P-J
[22] IHO-I
[23] P-E
[24] P-B. See also DOE-4:2 – Prior Written Notice (PWN) Description of Each Evaluation Procedure, Assessment, Record, or Report Used in the Decision to Propose or Refuse the Action.
[25] P-B:025
[26] Id.
[27] P-C:001
[28] P-C:009
[29] P-A:1
[30] P-A:1 and P-D:5
[31] P-A:2
[32] Id.
[33] Id.
[34] Id.
[35] P-D:3
[36] P-E:1
[37] P-A:2-3, P-I
[38] K-1 (The affidavit numbers are not sequentially numbered. Therefore, please see the affidavit for the relevant sections.)
[39] P-K-2
[40] DOE-1:1
[41] Id.
[42] Id.
[43] Id.
[44] Id.
[45] DOE-1:10
[46] DOE-4. The PWN, dated 05/12/2022, incorrectly states that the meeting was held on 05/11/2022. The meeting was held on 04/13/2022 (see DOE-3).
[47] This statement in the PWN contradicts the district’s position that this is an IESP case. An IESP does not make a class size or ratio recommendation for parentally placed students in private schools. This is circumstantial evidence that more than just IESP services were discussed at this meeting but the details of the discussion were omitted from the conference minutes.
[48] DOE-2:1-2
[49] DOE-4:2
[50] DOE-1, 2 and 4
[51] P-H
[52] The parent’s response makes an argument for compensatory education that is not a relief requested either in the DPC or the Proposed Order of Relief. Therefore, the IHO is not considering this argument or making an award for compensatory education.
[53] IHO-II:¶8 [a]
[54] IHO-II:¶8 [b]
[55] IHO-II:¶8 [c]
[56] IHO-II:¶8 [c] & [d]
[57] IHO-II:¶9 [a] – [c]
[58] IHO-III:¶13-28
[59] IHO-III:¶22
[60] P-E:1
[61] This argument is without basis in law or fact (Application of a Student with a Disability, 23-068, p.7, citing Bd. of Educ. of Bay Shore Union Free Sch. Dist. v. Thomas K, 14 N.Y.3d 289, 293 [2010]).
[62] R.E. v. New York Dep’t of Educ., 694 F.3d 167, 184-185 [2d Cir. 2012]; and see New York Education Law §4404[1][c].
[63] 20 U.S.C. § 1415 (i)(2)(c). See also Reid v. District of Columbia, 401 F.3d 516, 521 [D.C.C. 2005]
[64] Greenwich Collieries v. Director, 990 F.2d 730, 736 [3rd Cir. 1993], affirmed 512 U.S. 246 [1994]
[65] See generally, Sykes v. District of Columbia, 518 F. Supp. 2d 261, 267 [D.C.D.C. 2007]
[66] Id.
[67] Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F. 2d 563, 567 [2d Cir. 1989].
[68] 20 U.S.C. §§ 1400-1482
[69] See Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 183 [1982] [hereinafter referred to as “Rowley” [internal quotations omitted].
[70] Id.
[71] Id. at p.188
[72] See generally, Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 [2009]; Rowley, 458 U.S. 206-07; 20 U.S.C. §1400 [d] [1] [A]-[B].
[73] Rowley, 458 U.S. 204
[74] Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 137 S.Ct. 988, 1000 [2017] [hereinafter “Endrew F.”]
[75] Endrew, 137 S.Ct. 994; and See 34 CFR §300.320 [a] [2] [i], [2] [i] [A]; 8 NYCRR §200.4 [d] [2] [iii].
[76] Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 195 [2d Cir. 2005]; and Walczak, 142 F.3d 119, 130 [2d Cir. 1998] [internal citations omitted]
[77] See P. v. Newington Bd. Of Edu., 546 F.3d 111, 119 [2nd Cir. 2008]
[78] Reid v. District of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] and R.E. v. New York City Dep't of Educ., 694 F.3d 190-191
[79] Gagliardo, 489 F.3d 105, 112 [2d Cir. 2007] [internal citations omitted]
[80] Gagliardo, 489 F.3d 105, 115 [internal citations omitted]
[81] Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d Cir. 2006], citing Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 14 [1993] (“…the §1401 [a] [18] requirements, including the requirement that the school meet the standards of the state educational agency, 1401 [a] [18] [B] -- do not apply to private parental placements.”)
[82] Gagliardo, 489 F.3d at 112 [internal citations omitted]
[83] Id.
[84] Gagliardo, 489 F.3d 105, 115 [internal citations omitted]
[85] Rowley, 458 U.S. 204
[86] Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 137 S.Ct. 988, 1000 [2017] [hereinafter “Endrew F.”]
[87] Endrew, 137 S.Ct. 994; and See 34 CFR §300.320 [a] [2] [i], [2] [i] [A]; 8 NYCRR §200.4 [d] [2] [iii].
[88] Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 195 [2d Cir. 2005]; and Walczak, 142 F.3d 119, 130 [2d Cir. 1998] [internal citations omitted]
[89] 8 NYCRR § 200.1 [mm]
[90] 8 NYCRR § 200.1 [mm] [i], [ii]
[91] 8 NYCRR § 200.1 (zz) (1) Autism, (2) Deafness, (3) Deaf-Blindness, (4) Emotional Disturbance, (5) Hearing Impairment, (6) Learning Disability, (7) Intellectual Disability, (8) Multiple Disabilities, (9) Orthopedic Impairment, (10) Other Health-Impairment, (11) Speech or Language Impairment, (12) Traumatic Brain Injury or (13) Visual Impairment including Blindness.
[92] Education Law 4401 [1] and [2] [a]
[93] See 20 U.S.C. § 1414 [c] [4] [A]; 8 NYCRR § 200.4 [b] [5] [iv] and § 200.5 [a] [5] [i]
[94] 20 U.S.C. § 1414 [c] [1] [A]; 8 NYCRR §§ 200.4 [b] [5] [i], 200.4 [b] [5] [ii], 200.4 [b] [4], see also 20 U.S.C. § 1414 [c] [5] [A]) [italics added].
[95] 20 U.S.C. § 1414 [b] [2] [A], [b] [3] [B]; see also 34 C.F.R. § 300.4, § 300.305, § 300.324; 8 NYCRR § 200.4 [b], [f] [1]
[96] 34 CFR § 300.304 [c] [6]; 8 NYCRR § 200.4 [b] [6] [ix]; see Application of the Bd of Educ of Buffalo Sch. Dist, Appeal No. 13-056 at 12-13; Application of the Dep’t of Educ., Appeal No. 07-018).
[97] P-E:2, P-J:¶19
[98] Id.
[99] Forest Grove Sch. Dist. v. T.A., 557 U.S. 246-247
[100] E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014]
[101] Forest Grove Sch. Dist. v. T.A., 557 U.S. 247 and E.M. v. New York City Dep't of Educ., 758 F.3d 461
[102] E.M. v. New York City Dep't of Educ., 758 F.3d 461
[103] Bettinger v. New York City Bd. Of Educ., 2007 WL 4208560, at 6 (SDNY Nov. 20, 2007).
[104] See D.A. v. New York City Dept. of Educ., 769 F Supp 2d 403, 419-20 (SDNY 2011).
[105] 8 NYCRR § 200.5 [i] [1] [v]
[106] See generally, Rombach v. Change, 355 F.3d 164, 171 [2d Cir. 2004]
[107] I find that the request by the parent for a deduction for religious instruction both in the parent’s affidavit and the attorney’s memorandum of law is boilerplate language included in error.