Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: [Redacted]

Student’s Name: [Redacted]

District: [Redacted]

Hearing Requested By: Parents

Hearing Officer: Martin J. Kehoe III, Esq.

Actual Record Close Date: December 20, 2023

I. Introduction

This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (“IHO”) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (“IDEA”) and the New York State Education Laws. The School District will be referred to as “District,” the parent(s) as “Parent(s)” and the student will be referred to as “Student.”

II. Overview This is a “reimbursement” case. A board of education may be required to reimburse parents for their expenditures for private education 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. Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); Sch. Comm. Of Burlington v. Dep’t. of Educ., 471 U.S. 359, 369-70 (1985). The analytical framework for deciding a reimbursement case is typically called a three-prong analysis.

This case involves a demand for tuition reimbursement for the 2021-2022 school year (“SY”). The Parents filed the complaint notice on June 15, 2023. (Ex. A). I was appointed as the IHO on June 16, 2023. A hearing was held across multiple dates.^[1] The Parents introduced exhibits A-L into the record and called three (3) witnesses: Director of the Private School (“Director”), the Mother, and the Sister. Additionally, the Parent offered a closing brief, which is included in this record as Exhibit IHO #1. The District did not offer any exhibits, nor did they have any witnesses testify on their behalf.

a. Parents’ Position The Parents allege that the District failed to provide the Student a Free Appropriate Public Education (“FAPE”) for the 2021-2022 SY on the grounds of various procedural and substantive violations. (Ex. A-2). As a remedy the Parent seek reimbursement for the tuition costs associated with the unilateral placement of the Student at the Private School. Id.

b. District’s Position The District did not present a Prong I case in that they failed to introduce evidence or have any witness to testify on their behalf. The District did not challenge the Parents’ unilateral placement of the Student on Prong II, nor did it address the equities on Prong III.

c. Background

of the Case The Committee on Special Education (“CSE”) did not hold a meeting to create an Individualized Education Program (“IEP”) for the Student for the 2021-2022 SY. (Ex. A-1). Taking from the complaint notice:

At the start of the 2021-2022 school year, [the Student] was an eighteen-year-old student classified by the CSE as a student with Autism.^[2] He had been previously diagnosed with autism spectrum disorder (“ASD”), Attention Deficit Hyperactivity Disorder, Developmental Coordination Disorder, Borderline

Intellectual Functioning, Generalized Anxiety Disorder, Trichotillmania (HairPulling Disorder), and Persistent (Chronic) Motor Tic Disorder. [The Student] presented with difficulties in the areas of cognitive skills, academic skills, social/emotional skills, communication/language skills and behavior skills. He often engaged in obsessive compulsive behaviors, socially inappropriate behaviors, and behaviors typically exhibited by students with Tourette syndrome. [The Student] also presented with deficits in the areas of attention/concentration, sensory integration, and self regulation. (Ex. A-1).

The Director at the Private School testified that the Student has a complex profile:

[The Student] has a very complicated learning profile. He is a bright young man that demonstrates academic capacities commensurate with age-appropriate development, but has significant deficits in emotional and sensory regulation, expressive and pragmatic language skills, and comprehension skills. He was bullied prior to attending [the Private School] and presents with low self-esteem.

He is also impulsive, distractable, and has low-frustration tolerance, and would often engage in task avoidant behaviors. (Ex. J-3). It is with this background that I now turn to the legal considerations of the IDEA.

e. Legal Overview A state receiving federal funds under the Individuals with Disabilities Education Act (“IDEA”) must provide disabled children with a free and appropriate public education (“FAPE”). Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005). To ensure that qualifying children receive a FAPE, a school district must create an individualized education program (“IEP”) for each such child. See 20 U.S.C. § 1414(d); Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 297 F.3d 195, 197 (2d Cir. 2002) (describing the IEP as the "centerpiece" of the IDEA system). The IEP is "a written statement that sets out the child's present educational performance, establishes annual and short-term objectives for improvements in that performance, and describes the specially designed instruction and services that will enable the child to meet those objectives." D.D. ex rel. V.D. v. N.Y.C. Bd. Of Educ., 465 F.3d 503, 507-08 (2d Cir. 2006) (internal quotation marks omitted). The IDEA requires that an IEP be "reasonably calculated to enable the child to receive educational benefits." Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982). R.E. v. New York City Dep’t of Educ., 694 F.3d 167 (2d Cir. 2012). In New York, the state has assigned responsibility for developing IEPs to local Committees on Special Education (“CSE”). N.Y. Educ. Law § 4402(1)(b)(1); Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 123 (2d Cir. 1998). CSEs are comprised of members appointed by the local school district's board of education, and must include the student's parent(s), a regular or special education teacher, a school board representative, a parent representative, and others. N.Y. Educ. Law § 4402(1)(b)(1)(a). The CSE must examine the student's level of achievement and specific needs and determine an appropriate educational program. Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107-08 (2d Cir. 2007).

If a parent believes that his child's IEP does not comply with the IDEA, the parent may file a "due process complaint" (a type of administrative challenge unrelated to the concept of constitutional due process) with the appropriate state agency. 20 U.S.C. § 1415(b)(6). In such cases, the IDEA mandates that states provide "impartial due process hearings" before impartial hearing officers (“IHO”). Id. § 1415(f). Under New York's administrative system, the parties first pursue their claim in a hearing before an IHO. N.Y. Educ. Law § 4404(1). Either party may then appeal the case to the state review officer (“SRO”), who may affirm or modify the IHO's order. Id. § 4404(2). Either party may then bring a civil action in state or federal court to review the SRO's decision. 20 U.S.C. § 1415(i)(2)(A). See, R.E., 694 F.3d 167 (2d Cir. 2012).

III. Reimbursement Analysis A board of education may be required to pay for educational services obtained for a student by his or her parent, if (i) the services offered by the board of education were inadequate or inappropriate, (ii) the services selected by the parent were appropriate, and (iii) equitable considerations support the parents' claim. Arlington Cent. Sch. Dist. v. L.P., 421 F. Supp. 2d 692 (S.D.N.Y.) (citing Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359 (1985)).^[3] Thus, I will analyze the Parents’ claim using this three-prong approach.

a. Prong I: The District failed to meet its burden in demonstrating that it provided the Student a FAPE for the 2021-2022 SY.

i. Legal Standard

1. Procedural Standard Detailed procedural provisions lie at the heart of the IDEA. 20 U.S.C. §§ 612 and 615; 34 C.F.R. §§300.300-300.576; Evans v. Rhinebeck Central School District, 930 F. Supp. 83 (S.D.N.Y. 1996); B.E. R.R. v. State Bd. of Educ. 874 F.2d 1036, 1041 (5th Cir. 1989). In order to achieve the goal of providing all children with eligible disabilities with a FAPE, the IDEA statute requires that the states comply with “extensive procedural rights and safeguards” in order to receive federal funds for use in special education programs. See 20 U.S.C. § 615(a); LIH v. New York City Board of Educ., 33 IDELR 1 (E.D.N.Y. 2000); J.G. v. Board of Education of the Rochester City Sch. Dist., 830 F.2d 444, 445 (2d Cir. 1987).

In evaluating whether the District has complied with the procedural requirements of the IDEA, I consider whether the alleged procedural violation either 1) impeded the Student’s right to a free and appropriate public education, 2) significantly impeded the Parent’s opportunity to participate in the decision making process regarding the provision of a free and appropriate education, or 3) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); see also, Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp.2d 415, 419 (S.D.N.Y. Jan. 9, 2007), Application of a Child with a Disability, Appeal No. 07-007.

2. Substantive Standard IDEA requires an educational program reasonably calculated to enable a child to make progress appropriately considering the child's circumstances. Endrew F. v. Douglas Co. School Dist. Re-1, 137 S. Ct. 988 (2017). This obligation of the District is accompanied by the requirement to demonstrate the appropriateness of the program recommended by its CSE. (Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed Dept Rep 487 [1983]). To meet its burden, a board of education must be able to “. . . offer a cogent and responsive explanation for their decisions . . .” Endrew F. v. Douglas Cnty. Sch. Dist. RE-1, 580 U.S. 386 (2017).

ii. Analysis

I first look to the Parents’ allegations to determine the scrutiny to apply in evaluating the District’s presentation. As mentioned above in the Parents’ Position, the Parents’ main concerns lie in that the District failed to provide the Student an IEP for the 2021-2022 SY. This is the backdrop in which I weigh the District’s recommendations, ever mindful that the District has the burden of proof. In the present matter, the District failed to present witnesses. This coupled with the Parent’s presentation, I find that the District failed to meet its burden in showing that it provided the Student an individualized program, tailored to the Student’s individual needs. In developing a student’s IEP, the CSE must consider the most recent evaluative date of the student. 20 U.S.C. § 1414(c)(1)(A); 34 C.F.R. § 300.324(a)(1)(iii). Thus, the burden lies on the district to demonstrate which evaluative materials were reviewed during each CSE meeting in reaching the terms of the IEPs. L.O. v. N.Y. City Dep't of Educ., 822 F.3d 95, 110 (2d Cir. 2016). In L.O., the plaintiff alleged that the district committed multiple procedural errors in formulating each of the student’s IEPs, independently and cumulatively resulting in the denial of a FAPE for each school year. Id. at 110. The SRO and the District Court found that the district failed to meet its burden, in that it failed to demonstrate how the CSE determined the student’s program, leaving the court to speculate. Id. at 110. While the lower courts were correct in only looking to the evaluative materials in existence at the time of the CSE meetings, the Second Circuit points out that the courts ignored the plain language of the statute, which requires the court to consider whether the CSE actually reviewed such data. Id. at 110-111.

The court also voiced its disagreement with the district’s reliance on R.B. v. New York City Dept. of Educ., 589 F. App’x 572, 575 (2d Cir. 2014) (holding that a parent is precluded from contesting the absence of evaluative material during the CSE meetings because she could have raised the matter at the meeting). The court concludes that even if the parent could have objected the absence of evaluative materials or the CSE’s failure to consider said materials in formulating the student’s IEP, the district is not absolved of upholding its responsibilities imposed on it by Congress. L.O., 822 F.3d 95, 110, 111 (2d Cir. 2016).

As the court observed in L.O., I too, am left to speculate the CSE’s rationale for its decisions in creating the Student’s IEP. Thus, I find that the District failed to meet its burden in demonstrating that it provided the Student with a FAPE during the 2021-2022 SY.

b. Prong II: The Parents met their burden in showing the Private School to be an appropriate placement for the Student for the 2021-2022 SY.

i. Legal Standard Having determined that the District failed to offer the student a FAPE for the 2021-2022 SY, the next inquiry focuses on whether the parent's unilateral placement of the student at the Private School was appropriate. In doing so, I must consider whether the Parents met their burden of proving the appropriateness of the unilateral placement of the Student at the Private School. On Prong II, New York federal courts have held that parental placements are “subject to fewer constraints than that applied to the school authorities.” Schreiber v. E. Ramapo Cent. Sch. Dist., 700 F. Supp 529 (S.D.N.Y. 2010). The Second Circuit has clearly stated:

. . . [P]arents 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 v. Arlington Cent. Sch. Dist., 489 F.3d 105 (2d Cir. 2007) (quoting Frank G. v. Bd. of Educ., 459 F.3d 356, 364 (2d Cir. 2006)).

Moreover, parents "may not be subject to the same mainstreaming requirements as a school board." Frank G. v. Bd. of Ed. of Hyde Park (2d Cir. 2006) (quoting M.S. v. Bd. of Ed. of City Sch. Dist. of Yonkers, 231 F.3d 96, 105 (2d Cir. 2000)) (citing Warren G. v. Cumberland County Sch. Dist., 190 F.3d 80, 84 (3d Cir. 1999)) (holding that "the test for the parents' private placement is that it is appropriate, and not that it is perfect").

ii. Analysis

The Director of the Private School (“Director”) testified on the Parents’ behalf to demonstrate the appropriateness of the Private School. He provided a brief description of the school:

[The Private School] is founded on the [] education and adapts the [] curriculum to the specific needs of each student. Academic programming includes specialized adaptive methodology and the use of communication technology when the student requires such tools. Educational programming at the OSS is based on a multidisciplinary approach that integrates classroom work and practically based educational activities. Occupational Therapy, Speech and Language/Communication therapy, Assisted Augmented Communication (AAC), Social Skills, Art Therapy, Eurythmy Therapy, Movement Therapy, Adaptive PE, Sensory Integration, and Equine Therapy are some of the therapeutic modalities made available for the students. All our educators and staff are offered extensive opportunities for further training and professional development with respect to all aspects of child development, and in particular with respect to the different pathologies or disabilities that we frequently encounter. These include workshops that address the challenges of mainstreaming students and helping them navigate that process with our students. Other workshops have focused on how to implement effective behavioral interventions for students with challenging behaviors. We are affiliated with [], so our teachers participate in their training and mentoring programs. We also encourage off-site professional development opportunities. [The Private School] is a located on a 200-acre campus owned by the Threefold Educational Foundation with 88 of those acres being owned by a State-licensed elder care facility. The campus includes a farm, two wood shops, several kitchens, and a pottery studio, providing many opportunities for experiential learning. We say there is one teacher for every five students, but for academics, it is either 1:1 instruction with the teacher, or perhaps 3 students would be present for lessons like botany in the medicinal garden where two students would be doing something else in the garden. In addition, many of the students have 1:1 paraprofessional support. Twenty-six students were enrolled during the 2021-2022 school year, aged ten through twenty-one years of age. Our program is designed for students classified with autism or profound learning disabilities and have complicated learning profiles. (Ex. J-2).

The Director testified that she is familiar with the Student. The Private School provided the Student with individualized sessions twice a week for 45 minutes. (Ex. J-2). Further, the Student’s class consisted of five (5) students, one (1) teacher, and four (4) paraprofessionals. Students were grouped by their chronological age, as well as by their academic, development and social needs. Class size changed based on [the Student’s] specific learning needs. (Ex. J-3). The Director further testified about the specifics of the Student’s classes during the 2021-2022 SY. (Ex. J.3-5). She noted that the Student’s schedule is flexible when needed and adapts based on the Student’s ability.

(Ex. J-6).

The Director testified that the Student made progress during the 2021-2022 SY: [The Student] made progress during the 2021-2022 school year. [The Student] demonstrated academic progress through out title year. [The Student] had significant health issues that posed challenges to title learning process, however, being equipped to adapt the schedule to one on one instruction proved very helpful and effective for [the Student]. [The Student] is a motivated student who wanted to complete as much work as he could to meet the credits he will need to graduate. During this year, [the Student] demonstrated the most academic progress when abstract st1bjects were integrated with contextual and functional learning. This was especially evident in classes such as film where [the Student] had to connect skills such as story writing and animation to understand and create a short screen play. [The Student] is an artistic student who loves art and uses that modality as a successful tool to learning. In the classes that were more group focused such as farm and garden or reading, [the Student] had to work on sensory tolerance as being with others was not always easily managed by him. [The Student] worked hard on his academic and social skills as best he could throughout the year and that determination made it possible for [the Student] to take advantage of the flexible and adaptive classes all to make meaningful educational progress.

In my opinion, the [Private School] was an appropriate placement for [the Student] for the 2021-2022 school year, because our program provided him with flexibility, adaptation of programming, integration of therapeutic modalities, and 1:1 support and individualized attention [the Student] was able to attend to the learning and make progress during the 2021- 2022 school year. (Ex. J-6).

Thus, I find that the Private School provided educational instruction specially designed to meet the unique needs of the Student. I credit the Parents’ exhibits and witnesses for articulating the appropriateness of the placement in addition to the Student’s progress. The Parents have met their burden by establishing that such services were necessary to permit the Student to benefit from instruction. I, therefore, rule for the Parents for Prong II.

c. Prong III: The equities lie in favor of the Parents in that they cooperated with the District.

i. Legal Standard 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 where equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch.

Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192).

"Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148 4). The burden of proof

4 § 300.148 Placement of children by parents when FAPE is at issue.

(a) General. This part does not require an LEA to pay for the cost of education, including special education and related services, of a child with a disability at a private school or facility if that agency made FAPE available to the child and the parents elected to place the child in a private school or facility. However, the public agency must include that child in the population whose needs are addressed consistent with §§ 300.131 through 300.144.

(b) Disagreements about FAPE. Disagreements between the parents and a public agency regarding the availability of a program appropriate for the child, and the question of financial reimbursement, are subject to the due process procedures in §§ 300.504 through 300.520.

(c) Reimbursement for private school placement. If the parents of a child with a disability, ( who previously received special education and related services under the authority of a public agency, enroll the child in a private preschool, elementary school, or secondary school without the consent of or referral by the public agency, a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if the court or hearing officer finds that the agency had not made FAPE available to the child in a timely manner prior to that enrollment and that the private placement is appropriate. A parental placement may be found to be appropriate by a hearing officer or a court even if it does not meet the State standards that apply to education provided by the SEA and LEAs.

(d) Limitation on reimbursement. The cost of reimbursement described in paragraph (c) of this section may be reduced or denied (1) If - (i) At the most recent IEP Team meeting that the parents attended prior to removal of the child from the public school, the parents did not inform the IEP Team that they were rejecting the placement proposed by the public agency to provide FAPE to their child, including stating their concerns and their intent to enroll their child in a private school at public expense; or (ii) At least ten (10) business days (including any holidays that occur on a business day) prior to the removal of the child from the public school, the parents did not give written notice to the public agency of the information described in paragraph (d)(1)(i) of this section; is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at 7 [S.D.N.Y. Aug. 27, 2010]).

Tuition reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the child from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense." (20 U.S.C. § 612[a][10][C][iii][I]; see 34 C.F.R. § 300.148[d]) This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools." (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]) (2) If, prior to the parents' removal of the child from the public school, the public agency informed the parents, through the notice requirements described in § 300.503(a)(1), of its intent to evaluate the child (including a statement of the purpose of the evaluation that was appropriate and reasonable), but the parents did not make the child available for the evaluation; or (3) Upon a judicial finding of unreasonableness with respect to actions taken by the parents.

(e) Exception. Notwithstanding the notice requirement in paragraph (d)(1) of this section, the cost of reimbursement - (1) Must not be reduced or denied for failure to provide the notice if - (i) The school prevented the parents from providing the notice; (ii) The parents had not received notice, pursuant to § 300.504, of the notice requirement in paragraph (d)(1) of this section; or (iii) Compliance with paragraph (d)(1) of this section would likely result in physical harm to the child; and

(2) May, in the discretion of the court or a hearing officer, not be reduced or denied for failure to provide this notice if - (i) The parents are not literate or cannot write in English; or (ii) Compliance with paragraph (d)(1) of this section would likely result in serious emotional harm to the child. (Approved by the Office of Management and Budget under control number 1820-0030) (Authority: 20 U.S.C. 1412(a)(10)(C))

ii. Analysis

The Parents sent a ten-day notice letter in a timely manner, expressing their intent to unilaterally place the Student at the Private School for the 2021-2022 SY. In the letter, the Parents informed the District that he would seek funding from the District for the placement. (Ex. B-1).

Upon review of the record, I find that the Parents cooperated with the District and did nothing to impede them from developing an appropriate IEP for the Student. As such, I find no reason for reduction in tuition reimbursement. I, therefore, rule for the Parents in Prong III.

It is therefore ORDERED

For the District to reimburse/directly pay the Parents/Private School for cost of tuition for the Private School, where they unilaterally placed the Student for the 2021-2022 SY.

Dated: December 20, 2023

Martin J. Kehoe, Esq.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party's request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

Footnotes

[1] A hearing was held across the following dates: July 27, 2023; August 29, 2023, and September 28, 2023.

[2] 8 NYCRR Part 200.1(zz)(1) Autism means a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age 3, that adversely affects a student’s educational performance. Other characteristics often associated with autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences. The term does not apply if a student's educational performance is adversely affected primarily because the student has an emotional disturbance as defined in paragraph (4) of this subdivision. A student who manifests the characteristics of autism after age 3 could be diagnosed as having autism if the criteria in this paragraph are otherwise satisfied.

[3] In New York State, “[t]he board of education or trustees of the school district or the state agency responsible for providing education to students with disabilities shall have the burden of proof, including the burden of persuasion and burden of production, in any such impartial hearing …” N.Y. Educ. Law § 4404 (1)(c), modifying the rule enunciated in Schaffer where the burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief. Schaffer v. Weast, 546 U.S. 49, 58 (2005).