New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 249079

Student’s Name: STUDENT

School District: N.Y.C. Dept. of Ed., District # [REDACTED]

Impartial Hearing Officer: Ritter, Jennifer

Date of Filing: 6/20/2023

Hearing Requested by: Parent

Date of Hearing: 9/22/2023

Record Close Date: 10/02/2023

Date of Decision: 10/02/2023

BACKGROUND

Parent, through counsel, filed a Due Process Complaint (“DPC”) on or about 6/20/2023. In the Request, the Parent alleges that the Department of Education (“DOE”) failed to offer the student with a free appropriate public education (“FAPE”) for the 2022-2023 school year. (Parent’s Exhibit “A”, hereinafter P A).

Parent alleges that the DOE failed to provide a FAPE and did not issue a school location letter before the start of the extended school year. Id. By way of relief, Parent seeks an award of tuition reimbursement for Student’s attendance during the 2022-2023 school year at Private School, a private program not approved by the Commissioner of Education for the education of students with disabilities. Id. The Parent also seeks reimbursement for meals, funding for a Functional Behavioral Analysis (“FBA”), transportation and the inclusion of certain items on the Student’s Individualized Education Plan (“IEP”). Furthermore, Parent alleges that the equities support their claim for tuition reimbursement and direct tuition funding for the school years at issue. Id.

Considering the foregoing and as more fully discussed below, I find that a) the DOE failed to meet its burden that it offered Student FAPE for the 2022-2023 school year, the b) Private School offers Student with specially designed instruction sufficient to meet Student’s needs, and c) the equities support the Parent’s requested relief.

PROCEDURAL HISTORY

I was appointed on 6/21/2023. I wrote to the parties that soon thereafter scheduling a status conference. On 7/24/2023, the parties appeared for a virtual status conference. The parties indicated that the issues were the IEP; an Independent Evaluation; transportation; meal reimbursement and payment of tuition. On August 14, 2023, the Parties requested an extension of the timeline which was granted.

On 9/22/2023, both parties appeared for a virtual hearing. The DOE did not seek to introduce witness testimony but submitted two (2) Exhibits: the IEP dated May 23, 2022, and Prior Written Notice dated June 17, 2022. The DOE conceded it had failed to offer the Student a FAPE for the school year at issue. (See 9/22/2023 Transcript P. 74, hereinafter, “9/22/2023 Tr. P. 74“) Parent submitted 14 exhibits into the record without objection from the DOE. Included in Parent’s evidence were three (3) affidavits: Parent’s Affidavit, Director’s Affidavit and Teacher’s Affidavit. The DOE indicated it had no intention to cross-examine the Director. (9/22/2023 Tr. P. 75, 88). All affidavits were accepted in the record. Parent rested and the DOE advised that it had no further statement to make or testimony or documents to offer. Both Parties made oral closings. (9/22/2023 Tr. P 103-105; 110-116).

FINDINGS OF FACT AND DECISION

After a full review of the record generated at hearing, I make the following findings of fact and determinations.

TUITION REIMBURSEMENT

Student is classified as a child with Autism. (DOE Exhibit “2”, hereinafter “DOE 2”). The Committee on Special Education (“CSE”) recommended a special class 8:1 +1 5 days a week, 35 times a week in an extended school year. (DOE 2 32-33). They also recommended:

• Counseling services 2x30 1:1;
• Occupational Therapy (“OT”) 2x30 1:1;
• OT, group 1x30;
• Parent Counseling and Training (“PCAT”) 60 minutes per month individual or group;
• Physical Therapy (“PT”) 2x30;
• Speech-Language Therapy (“SLT”) 2x30 1:1;
• SLT, group 1x30; and
• An assistive technology device: the speech generating device (“SGD”). Id.

The DOE sent a PWN but no attached School Location Letter (“SLL”). (DOE 3).

On May 18, 2-22 Parent signed a contract with Private School for Student to attend Private School for the 2022-2023 school year. (See, generally P C). The contract contained a clause that should the DOE offer Student a FAPE, Parent would be released from the Contract with written notice before September 12, 2022. (P C-2). To secure Student’s spot at Private School, Parent paid a deposit of $500.00 on June 9, 2022. (P D). The remainder of the tuition owed pursuant to the contract, $155,500.00, remains unpaid.

The unilateral placement, Private School, serves mainly children with Autism. (P L-1). Private School also provides an extended year schedule. (P G). All head teachers have or are enrolled in a master’s degree program. (P L-3). All related service providers have a master’s degree and are licensed in their fields. (Id.) Parent provided schedules for the Summer 2022 session and the 2022-2023 Schedule. (See, generally, P G). Student receives OT, SLT, PT, and Counseling at the same rate that the DOE proscribed. (P G and L-5, 6). Private School also provides adaptive physical education and PCAT, though not possibly at the same rate. Id. While the DOE recommended an 8:1 + 1 classroom, Private School provides a classroom of 9 students, but enough teaching staff for 2:1 support. (P M-1).

Parent testified that Parent could not afford tuition at Private School. Parent rents an apartment and has two (2) children. (9/22/2023 Tr. P. 99). I find this testimony credible.

Burden

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 (NYS Educ. Law § 4404(1)(c)).

Prong I

The IDEA provides that children with disabilities are entitled to a Free Appropriate Public Education ("FAPE") (20 U.S.C. § 1400 (d)(1)(A). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”) (34 C.F.R. § 300.13). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017).

As to Prong I of the Burlington/Carter standard, the DOE Representative indicated on the record that it conceded Prong I, and presented no witnesses. (9/22/2023 Tr. P. 74). Therefore, I am constrained to find that the DOE failed to offer the Student FAPE for the 2022-2023 school year. Moreover, a review of the record herein establishes that the weight of the evidence supports the conclusion that the DOE failed to offer the Student an educational program reasonably calculated to offer FAPE for the 2022-2023 school year. (See, generally, DOE 2, DOE 3).

Prong II

A private school placement must be "proper under the Act." Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12, 15 (1993); Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 370 (1985). This means that the private school must offer an educational program which met the student's special education needs. See Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112, 115 (2d Cir. 2007); Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate." Gagliardo, 489 F.3d at 112) "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement.'" Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006)

Parents need not show that the placement provides every special service necessary to maximize the student's potential. Frank G., 459 F.3d at 364-65. When determining whether a unilateral placement is appropriate, "[u]ltimately, the issue turns on … whether the placement is ‘reasonably calculated to enable the child to receive educational benefits.’" Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115. A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student. 20 U.S.C. § 1401(29); Educ. Law § 4401(1); 34 CFR 300.39(a)(1); 8 NYCRR 200.1(ww); Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 (2d Cir. 2014).

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement. No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).

As stated above, Private School specializes in educating students with Autism. Student attended Private School for the 2022-2023 extended school year. They provide the same related services at the same rate as the DOE recommends. They also provide Music and Art Therapy. (P G). Activities for Daily Living and academic subjects are taught daily. (P G). Private School also provides an individualized period where they concentrate on academics. (Id.) Teacher describes how Student likes the sensory based activities Private School provides like making slime or playing with bubbles. (P M-1). The DOE did not ask questions or raise arguments regarding the appropriateness of Private School.

I find that Parent has met their burden in proving that the private program offered an educational program which met Student’s need under Prong II of the Burlington/Carter standard.

Student has also progressed in Private School’s program for the 2022-2023 school year. For instance, when Student became dysregulated towards the beginning of the year, the Student took ten (10) minutes to refocus. By the end of the school year, he was returning to focus in five (5) minutes. (P M-2). Student is becoming a more active participant in groups and has other students and books he likes. (P M-2). He has broadened his sight word vocabulary and is able to identify shapes and count sides of objects. (P M-3) He unpacks his own belongings now and is better about had-washing after restroom use. (P M-4). The DOE did not raise any issues or ask any questions regarding Student’s progress at Private School.

In reviewing the affidavits, progress reports and brochures, the weight of the evidence establishes that Student’s individual special education needs were addressed by Private School and that the instruction offered was "reasonably calculated to enable the child to receive educational benefits." Frank G., 459 F.3d at 364. Under these circumstances, I find that the Parent’s witnesses are credible.

Equities

Even if a parent establishes a right to reimbursement under the IDEA, "courts retain discretion to reduce the amount of a reimbursement award if the equities so warrant." Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246-47, 129 S. Ct. 2484, 174 L. Ed. 2d 168 (2009) In making that equitable determination, a hearing officer may consider many factors, including, inter alia, whether a parent’s unilateral withdrawal of her child from the public school was justified, whether the parent provided the Department with adequate notice of the withdrawal, whether the amount of private-school tuition was reasonable, whether the parent should have availed herself of need-based scholarships or other financial aid from the private school, and whether there was any fraud or collusion in generating (or inflating) the tuition to be charged to the Department, or whether the arrangement with the school was fraudulent or collusive in any other respect. E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014).

Here, Parent provided the necessary Ten-Day Notice of their concerns with the DOE’s offer of FAPE for the Student for the 2022-2023 school year. Therein, Parent detailed specific concerns. (P B). Parent, furthermore, gave the DOE notice of their intention to unilaterally place Student at Private School. Id. No evidence was submitted at hearing describing the DOE’s response to the Ten-Day Notice Letter.

By way of relief, Parent seeks reimbursement for their private school tuition costs and to have the balance of unpaid tuition sent directly to the Private School. Direct tuition funding is relief encompassed by the equitable remedial powers inherent in IDEA. See e.g. Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 406 (S.D.N.Y. 2011). Direct funding is permissible without proof of income or need. Cohen v. N.Y.C. Dep’t. of Educ., 1:21-cv-06260-MKV, (S.D.N.Y 9/26/23). I note that the DOE offered no arguments challenging the equities in this action. Equity demands that the DOE fund Student’s Private School tuition in this instance.

I find no issue with the reasonableness of the costs, including tuition, associated with the Private School. (P D). Student attended Private School during the year at issue with a total of ten absences for the extended school year. (P H). Moreover, I find that the weight of the evidence establishes that Parent cooperated with the DOE and its CSE’s efforts to develop an IEP and recommend a program and placement for the 2022-2023 school year. (DOE 2). Overall and after considering the record at hearing, I find that the equities support Parent’s claim for tuition reimbursement and direct funding.

MEALS

Parent has requested an order directing the DOE to reimburse her for the cost of Student’s breakfast and lunch on school days while he attended Private School during the 2022-2023 school year.

The Parents’ request is brought under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (“Section 504”). Under Section 504, a school district must provide individuals with an opportunity for an impartial hearing to resolve disagreements arising under the statute (see 34 C.F.R. § 104.36). IHOs in New York have jurisdiction over claims brought under Section 504. A.M. ex rel. J.M. v. New York City Dept. of Educ., 840 F. Supp. 2d 660, 671 n.13 (E.D.N.Y. 2012).

In order to support a claim that there has been a violation of Section 504, a party must show that he or she has a disability, is otherwise qualified for the benefit that has been denied and has been denied the benefit by reason of the disability. C.D. ex rel. S.D. v. New York City Dept. of Educ., 2009 WL 400382, at *7 (S.D.N.Y. 2009) [citing Weixel v. Bd. of Educ., 287 F.3d 138, 146-47 (2d Cir. 2002)]. The District Court in C.D. ex rel. S.D. found that the DOE’s policy of not providing free meals to minor students with disabilities who attended private special education schools was impermissibly discriminatory and a violation of Section 504, because it denied those students a benefit it provided to public school students solely by reason of the students’ attendance at private schools based on their disabilities. I take judicial notice that Student would have been entitled to free school lunch at a NYC DOE school during the school years at issue. See www.schools.nyc.gov/school-life/food/school-meals (site last visited on 9/26/2023).

Here, Student, who was classified by DOE’s CSE as a student with Autism for the 2022-2023 school year is an individual with disability as defined under Section 504.

In support of Parent’s request for funding for breakfast and lunch, Parent testified and submitted grocery receipts Parent claimed were representative of the purchases Parent made for the 2022-2023 school year. (See P O). The DOE did not make any argument that Student was not entitled to funding or reimbursement for meals but did question Parent about the expense. I find that the DOE’s failure to provide or pay for these meals is discriminatory because but for Student’s disability, which necessitates Student’s attendance at Private School, Student would receive free meals.

The remaining question concerns the rate per day for breakfast and lunch to be refunded to Parent. Parent testified that she spent an average of $18.00 per day for breakfast and lunch for Student during the 2022-2023 school years. (P O-1). Parent prepares all breakfasts and lunches for Student daily. (9/22/2023 Tr. P. 100). Parent proffered receipts for groceries purchased in August 2023 and September 2023, not the school year at issue. Parent testified that the groceries in these receipts were for her two children and only one half of the expense should be for Student. (P O-1). However, these receipts may have been prepared in anticipation of litigation since they were dated well after the DPC was filed and after an initial Due Process hearing date was set. (P O-2). Parent’s receipts and testimony are in conflict. Parent testified that Student loved “Checkers frozen french fries.” (9/22/2023 Tr. P. 100). Yet the representative receipts do not show any purchases of french fries. Even if that were not the case, it is difficult to believe that two students under the age of ten required ten (10) pounds of chicken per week which is what the receipts do reflect. (P O-2). Parent further testified that “snacks” were included in the $18 a day calculation. (9/22/2023 Tr. P. 97) The DOE is not required under Section 504 to pay for snacks.

I find that the rate of $10.00 per day is reasonable for the provision of breakfast and lunch to Student. Parent is entitled to receive reimbursement for the cost of Student’s breakfast and lunch on school days while Student attended Private School during the 2022-2023 school year at the rate of $10.00 per school day. Furthermore, I find that Parent is not entitled to reimbursement on days Student was absent from school.

FUNCTIONAL BEHAVIORAL ASSESSMENT

Parent claims in the DPC that “The DOE also failed to consider specialized supports to address Student’s behavioral needs which arise from his ASD, such as difficulty with behavioral regulation, that lead to behavioral outbursts.” (P A-3). As relief, Parent asks for funding for a private FBA with recommendations from any potential Behavioral Improvement Plan (“BIP”) to be included on any future IEP. (Id. At 4).

An FBA is an assessment, not an evaluation. D.S. v. Trumbull Bd. Of Educ., 495 F.3d 152, 165 (2nd Cir. 2020). Unlike evaluations, assessment tools are not included under the provisions for Independent Educational Evaluations (IEE) and are not required to be funded if there is a disagreement. Id.; 20 U.S.C. § 1414(a)(2)(A). Thus, a request for a FBA is treated differently than a request for an IEE. If s student’s behavior interferes with his education or that of another student, the CSE should conduct a FBA of a student. 8 NYCRR sec 200.4 (b)(1)(v).

When considering a request for a FBA, the CSE must consider behavioral strategies if the students’ behavior impedes his learning or the learning of another student. 8 NYCRR sec 200.4 (iv)(b)(xii)(3)(i). If the CSE does not consider strategies for the student’s behavior, this is a procedural violation. R.E. v. N.Y.C. Dep’t of Educ., 694 F.3d 167, 190 (2nd Cir. 2012).

The IEP lists as part of management needs: consistent positive reinforcement, clear and consistent routines and directions, opportunity for breaks if/when frustrated and other behavioral techniques to manage Student’s behaviors. (DOE 2-12). The CSE found that Student does not need behavioral interventions. Id.

It is unclear when Parent requested a FBA or if Parent discussed the FBA request with the CSE without discussing other management needs. (9/22/2023 Tr. P. 98). Parent, Parent’s Representative and Teacher are all listed as having been present at the IEP meeting. (DOE 2-40). The CSE did not note any request for a FBA. (See, generally DOE 2). It did note that once a day for approximately 10 minutes Student becomes dysregulated, but Private School, in response, increased counseling thru music therapy. (DOE 2-5). Finally, there was no documentary proof of the request for a FBA. No request for a FBA was included in Parent’s TDN. (P B). Indeed, Teacher for Student stated that Private School would not use and did not recommend a FBA for educating Student. (9/22/2023 Tr. P. 87-88).

Parent has not expressed why the behavioral strategies outlined in the IEP are insufficient, especially in light of their own witness claiming that a FBA is not needed or recommended. Given the insufficiency of the evidence that Parent sought this assessment prior to the DPC, the request for funding for a FBA is denied. I will recommend when the CSE reconvenes, the CSE should consider a FBA as part of the new evaluations and assessments.

AMENDING THE IEP

As relief, Parent requests that the IEP be amended to include two different mandates: (1) “A program that requires a classroom ratio that allows for 1:1 support for sensory regulation and highly individualized instruction with professionals that are trained and experienced in working with students with ASD to support and allow [Student] to make meaningful progress and acquire skills that help him become more independent; and (2) Training for classroom teachers and staff on recognizing [Student’s] sensory dysregulation and delivering individualized sensory interventions.” (P A-4). Parent argues that these requests are to make sure that Student’s individual needs are supported and not that these requests are tailored to one school. (9/22/2023 Tr. 108-109). DOE, in opposition, argues that to include these mandates in the IEP would circumvent the statutory process where the CSE reviews and assesses Student’s needs. (9/22/2023 Tr. P. 104-105).

Generally, an award of prospective relief in the form of prospective placement of a student in a particular type of program and placement, under certain circumstances, has the effect of circumventing the statutory process, pursuant to which the CSE is tasked with reviewing information about the student’s progress under current educational programming and periodically assessing the student’s needs. See Application of the Bd. of Ed, Appeal No. 22-176 at page 18; See Adams v. Dist. of Columbia, 285 F. Supp. 3d 381, 393, 396-97 (D.D.C. 2018) (noting with approval the hearing officer’s finding “that the directives of IDEA would be best effectuated by ordering an IEP review and revision, rather than prospective placement in a private school”); see also Student X, 2008 WL 4890440 at*16 (noting “that services found to be appropriate for the student during one school year are not necessarily appropriate for the student during a subsequent school year”).

I decline to bind the CSE to these recommendations. To require the CSE to include these mandates is usurping the job of the CSE. Furthermore, these requests are tailored to 1:1 support, something that neither the CSE nor Private School deems necessary. The teacher “training” seems to be paying Private School twice for a job they should already be doing. Additionally, if I do as Parent requests and order the CSE to give “teacher training,” I might have to find that Parent’s unilateral placement is inappropriate because the school does not have the quality of staff needed to support this Student. Parent’s request for the amendments to the IEP is denied.

OTHER RELIEF

Finally, I have reviewed the parties’ remaining contentions and find them to be either unnecessary to this decision, without merit, beyond my jurisdiction, or without sufficient basis in the record for a finding. Specifically, Parent presented no evidence or arguments concerning transportation which was a claim in Parent’s DPC. This claim is dismissed without prejudice. Accordingly, any other relief not specifically discussed in this decision is denied, and all the Parent’s remaining claims not discussed herein are dismissed without prejudice.

ORDER

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:

(1) Parent’s claim for tuition reimbursement for the Student’s unilateral placement, as well as direct tuition funding, at the Private School is GRANTED for the 2022-2023 school year as follows:

(a) The District shall reimburse the Parent in the amount of $500.00;

(b) The District shall directly fund the balance of the Student’s tuition at the Private School in an amount not to exceed $155,500.00.

(2) Within 35 days of receipt of an affidavit containing the number of days Student was physically present at Private School for the 2022-2023 school year, the District shall reimburse Parent $10.00 per day for breakfast and lunch expenses.

(3) When the CSE next convenes, the CSE is directed to consider a FBA for Student.

Dated: 10/2/2023

_____________________

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.

DISTRICT EVIDENCE

Exhibit	Title	Date	Pages
1	WITHDRAWN
2	Individualized Education Plan	5/23/2022	40
3	Prior Written Notice	6/17/2022	4

PARENT EVIDENCE

Exhibit	Title	Date	Pages
A	Due Process Complaint	6/19/2023	6
B	Ten Day Notice	6/17/2022	9
C	Private School Enrollment Contract	6/2/2022	6
D	Private School Tuition Affidavit	11/14/2022	1
E	Private School Learning Plan	2022-2023	1
F	Private School Brochure	2022-2023	8
G	Private School Class Schedule	2022-2023	2
H	Private School Attendance Report	2022-2023	2
I	December 2022 Private School Progress Report	12/2022	13
J	June 2023 Private School Progress Report	6/2023	16
K	Affidavit of Parent	9/14/2023	7
L	Affidavit of Director of Private School	9/14/2023	7
M*	Affidavit of Teacher	9/14/2023	5
O	Affidavit of Parent regarding meals	9/7/2023	5

* There is no exhibit N listed on Parent’s Disclosures.

IHO EXHIBITS

Exhibit	Title	Date	Pages
	None.