NY IHO #249133: Impartial Hearing...

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FINDINGS OF FACT AND DECISION

Case Number: 249133

Student’s Name: [REDACTED]

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

Impartial Hearing Officer: Nicholas Bancroft

Date of Filing: June 21, 2023

Hearing Requested by: Parent

Date(s) of Hearing: September 26, 2023

Record Close Date: November 3, 2023

Date of Decision: November 3, 2023

Time Sensitive: No

BACKGROUND

The Parent, through counsel, filed a Due Process Complaint (“DPC”) on June 21, 2023. In the DPC, the Parent alleges the Department of Education (“DOE” or “District”) failed to offer the student a free appropriate public education (“FAPE”) for the 2021-2022 and 2022-2023 school years.^[1]

Regarding the 2021-2022 school year, Parent alleges the DOE failed to develop an Individualized Education Program (“IEP”) or offer a placement to Student.^[2] Regarding the 2022-2023 school year Parent alleges the DOE developed an inappropriate IEP for Student.^[3] By way of relief, Parent seeks an award of direct funding of tuition for Student’s attendance during the 2021-2022 and 2022-20223 school years at Private School.^[4]

The District did not file a response to the DPC.

In light of the foregoing and as more fully discussed below, I find that a) the DOE failed to meet its burden that it offered Student a FAPE for the 2021-2022 and 2022-2023 school years, 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 in part.

PROCEDURAL HISTORY

I was appointed on June 22, 2023. Shortly after my appointment, I reached out to the parties and scheduled a settlement and pre-hearing conference (“PHC”) for July 28, 2023.^[5] At the PHC, the DOE was still investigating the possibility for settlement and the parties agreed to adjourn for a status conference on August 15, 2023.^[6] At the status conference, the case had not settled, and the parties requested a Due Process Hearing (“DPH”).^[7] Additionally, we discussed the issues to be addressed, the remedies requested, witnesses, and evidentiary disclosures. ^[8]

The DPH was held on September 26, 2023. The DOE called no witnesses, but introduced proposed exhibits 1-5, which I admitted without objection.^[9] The Parent called two witnesses, Program Director and Executive Director, who testified via affidavit and appeared for cross-examination. Parent introduced exhibits A-GG, which I admitted without objection.^[10] Both parties gave opening and closing arguments.

FINDINGS OF FACT

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

Student is a [REDACTED]-year-old student with a disability classification of emotional disturbance.^[11] Prior to the 2021 school year, Student had been deemed discharged from the district, according to a notice submitted by the DOE dated January 3, 2018.^[12] The first contact by Parent to the DOE subsequent to Student’s discharge was on November 29, 2021.^[13] On that date, Parent, through their representative, requested Student be evaluated and receive special education and related services from the DOE.^[14] DOE responded to Parent’s request on December 3, 2021 with a Prior Written Notice for Reevaluation.^[15] The DOE determined occupational therapy, psychoeducational, and speech and language assessments were necessary.^[16] The results of those evaluations are not in the record, but the results of the evaluations are summarized, to a limited extent, in Student’s IEP.^[17]

Student began attending Private School in August 2021.^[18] Program Director testified that Student presented with selective mutism and that other than a smile or a wave, Student required prompting and encouragement to communicate verbally or non-verbally via tablet.^[19] Student required 1:1 assistance to engage in tasks.^[20] In addition to Student’s need for academic remediation, Student struggled with personal hygiene.^[21] Student did not understand the importance of maintaining personal hygiene, the unpleasantness of body odor, the need to shower and change clothes on a regular basis, or maintaining a neat and clean appearance.^[22]

Throughout Student’s time at Private School, his skills improved. Student’s communication skills improved with the use of a tablet.^[23] Student was able to go from being unable to follow a 1-step direction to completing a 2-step direction with one prompt.^[24] Student’s personal hygiene improved.^[25] Student began showering regularly, brushing his hair and teeth, cleaned up after his meals, and assisted in cleaning up after group cooking activities.^[26]

At the end of the 2021-2022 school year, Student was reading on a beginning 3rd grade level and his vocabulary was at a 2nd grade level.^[27] In the 2022-2023 school year, Student’s reading had increased to an end of 3rd grade level and his vocabulary had increased to a 5th grade level.^[28]

Program Director believes Student requires a Behavior Intervention Plan (“BIP”) in order to progress socially, behaviorally, and academically.^[29] Private School created a BIP for Student.30 Student’s needs were addressed with a small class size (4:1:1), which provided individualized and small group attention.^[31] Student was in larger groups for lunch, sports, and music in order to acclimate him to larger groups.^[32] Student received speech and language therapy, occupational therapy, and counseling.^[33]

Private School has a religious component to its instruction. Student receives religious instruction for approximately^[30] minutes per day, or about 7 percent of Student’s school day.^[34] Tuition at Private School for the 2021-2022 and 2022-2023 school years was $66,000 ($55,000 for education services and $11,000 for related services) per year.^[35] Parent has not paid any money to Private School and requests direct funding.^[36]

CONCLUSIONS OF LAW

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.^[37]

Prong I

The IDEA provides that children with disabilities are entitled to a FAPE.^[38] A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written IEP.^[39] 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.^[40] 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.”^[41]

As to Prong I of the Burlington/Carter standard, the DOE failed to meet its burden.^[42] A review of the record establishes that the weight of the evidence supports the conclusion that the DOE failed to offer Student an educational program reasonably calculated to offer FAPE for the 2021-2022 and 2022-2023 school years.

Student has severe behavioral and academic limitations that must be addressed in order for Student to make educational progress. At the DPH, the DOE submitted an IEP and other form documents created by the DOE but called no witnesses. While limited decisions have found that the DOE can meet their Prong 1 burden based on documents alone, here, the DOE failed to meet that burden with their proffered evidence.^[43] None of the documents submitted by the DOE support a conclusion that the DOE’s proposed placement would meet Student’s needs, that the proposed placement could implement Student’s IEP, or even that a seat was available for Student. In short, the DOE declined to “offer a cogent and responsive explanation for their decisions” in creating the IEP, and it is “through the IEP that “[t]he ‘free appropriate public education’ required by the Act is tailored to the unique needs of” a particular child.”^[44]

Therefore, I find that the DOE failed to offer the Student FAPE for the 2021-2022 and 2022-2023 school years. The child find and notice issues raised by the parties will be addressed in the equities portion of this decision.

Prong II

A private school placement must be "proper under the Act."^[45] This means that the private school must offer an educational program which met the student's special education needs.^[46] Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate."^[47] 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.'^[48]

Parents need not show that the placement provides every special service necessary to maximize the student's potential.^[49] 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."^[50] A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student. ^[51]

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.^[52]

Private School is a school for students with special needs serving children and young adults with academic, cognitive, physical, and social emotional disabilities.^[53] Private School employs special education teachers with NYS certification and master’s degrees.^[54] Private School includes NYS licensed therapists in the areas of speech therapy, occupational therapy, physical therapy, mental health and counseling.^[55] Student was in a class size that offered individualized attention and small group work (4:1:1).^[56] Program Director testified Student was offered an appropriate special education program for both the 2021-2022 and 2022-2023 school years because his goals and curriculum were individualized and consistently revisited.^[57] Student’s class ratio had sufficient staff to provide him with opportunities for 1:1 and very small group learning which allowed him to learn and retain skills.^[58] Student progressed in all areas.^[59]

I find that the evidence presented by Parent at the DPH met their burden in proving that the private program offered an educational program which met Student’s needs under Prong II of the Burlington/Carter standard. In reviewing the hearing record, the weight of the evidence establishes that Student’s individual special education needs were addressed by the private school and that the instruction offered was "reasonably calculated to enable the child to receive educational benefits."^[60]

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."^[61] In making that equitable determination, a hearing officer may consider many factors, including, among other things, 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.^[62]

Here, there are issues related to Parent’s notice to the DOE of the unilateral placement. For the 2021-2022 school year, Parent’s first contact with the DOE was on November 29, 2021, wherein they requested evaluations and an educational program.^[63] The first day of school was August 31, 2021, and at that time Student was already enrolled.^[64] Evidence submitted by the DOE shows that Student was discharged from the DOE on January 3, 2018.^[65] The stated reason was “address and phone number unknown.”^[66] It should be noted, this piece of evidence was submitted on its face, without accompanying witness testimony or explanation. However, the earliest communication from the Parent comes from the November 29, 2021, letter. Furthermore, Parent themselves did not provide evidence explaining the potential gap in services or any other efforts made by Parent to participate in an IEP meeting.

As it relates to child find, I find no issue with the DOE’s initial efforts once contacted by Parent. Courts have held that child find duty is “triggered” when there is “reason to suspect a disability, and reason to suspect that special education services may be needed to address that disability.”^[67] Upon receipt of Parent’s letter in November of 2021, the DOE responded on December 3, 2021 providing Prior Written Notice for Student to be evaluated.^[68] While it appears those evaluations were completed, the DOE did not provide Student with an IEP until May 16,

2022. ^[69]

The regulations related to this issue are as follows: Within 60 school days of the receipt of consent to evaluate for a student not previously identified as having a disability, or within 60 school days of the referral for review of the student with a disability, the board of education shall arrange for appropriate special programs and services, except that if such recommendation is for placement in an approved in-state or out-of-state private school, the board shall arrange for such programs and services within 30 school days of the board's receipt of the recommendation of the committee. Such 60-day and 30-day time periods required by this paragraph shall not include any day(s) that such school is closed pursuant to an Executive Order of the Governor issued pursuant to a State of emergency for the COVID-19 crisis.^[70]

The DOE received notice on November 29, 2021. No calendar of school days has been provided in evidence by either party. Neither party raised the 60-day notice issue. Because of the dearth of evidence provided on this issue by the parties, I choose to exercise my equitable authority in fashioning an appropriate remedy. I find that the DOE could not have known of their obligation to provide Student with an IEP and placement prior to November 29, 2021. Additionally, although the school district endeavored to create a program for Student, they did not do so at all for the 2021-2022 school year.

I find the DOE is responsible for Student’s tuition at the unilateral placement for the 2021-2022 school year for the months of January 2021-June 2022. This time period is approximately 60.5% of the 2021-2022 school year. The entire tuition, including related services, for the 2021-2022 school year is $66,000. 7% of Student’s school day is made up of religious instruction. 7% of $66,000 is $4,620. The non-religious portion of Student’s tuition is $61,380. The DOE is responsible for 60.5% of that amount or $37,134.90.

There is no 10-day notice in the record for the 2022-2023 school year. However, Student participated in evaluations and the Parent participated in an IEP meeting. The DOE failed to make any argument regarding the lack of 10-day notice for the 2022-2023 school year. A parent’s failure to provide 10-day notice before unilaterally placing a child in a private school is not an automatic bar to reimbursement.^[71]

I find the balance of the equities weighs in favor of awarding tuition; however, I will subtract 7% of the tuition total as 7% of Student’s day was for religious instruction. The non-religious portion of Student’s 2022-2023 tuition was $61,380.

I find no issue with the reasonableness of the costs, including tuition, associated with the Private School. Student attended the Private School during the school year at issue. 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. Overall and after considering the record at the hearing, I find that the equities support Parent’s claim for direct funding of Student’s tuition in the amounts described above.

Other Relief

The IDEA does not authorize an administrative officer to award attorneys’ fees or other costs to a prevailing party; and entitlement, if any, to costs must be determined by a court of competent jurisdiction. Only a court can determine who is entitled to attorneys’ fees and I would be exceeding the scope of my authority by determining that the Parent is entitled to attorneys’ fees.

Other than the relief set out in my Order below, I find that no basis and/or evidence in the Record supports any additional relief.

ORDER

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

(1) Parent’s claim for tuition and related services for Student at Private School is GRANTED for the 2021-2022 and 2022-2023 school year as follows:

(a) The District shall directly fund tuition at Private School within 35 days of this order for the 2021-2022 school year in an amount not to exceed

$37,134.90.

(b) The District shall directly fund tuition at Private School within 35 days of this order for the 2022-2023 school year in an amount not to exceed

$61,380.

Dated: November 3, 2023

Nicholas Bancroft

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

1. Discharge 1/3/2018 1 page DOE

2. Individualized Education Plan (IEP) 5/16/2022 26 pages DOE

3. IEP Attendance Page 5/16/2022 1 page DOE

4. Prior Written Notice and School Location Letter 6/10/2022 13 pages DOE

5. Prior Written Notice for Revaluation 12/3/2021 4 pages DOE

PARENT EVIDENCE

A. Impartial Hearing Request 06/21/2023 5 pages

B. Individualized Education Program 05/16/2022 27 pages

D. C. Classroom Routines/Expected Behaviors 09/2021- 1 06/2022 Daily Schedule E. Behavior Modification Plan 09/2021- 1 06/2022 F. Communication/Social Skills Goals and Objectives 09/2021- 2 06/2022 G. Math Goals and Objectives 09/2021- 2 06/2022 2021-2022 1 page

J. H. Life Skills Goals and Objectives 09/2021- 2 06/2022 I. Reading/Language Arts Goals and Objectives 09/2021- 2 06/2022 Counseling Report and Goals May 2022 2 pages

K. Occupational Therapy Report and Goals May 2022 5 pages

L. Speech and Language Report and Goals May 2022 5 pages

M. Teacher’s Report May 2022 3 pages

O. N. Classroom Routines/Expected Behaviors 09/2022- 1 06/2023 Daily Schedule P. Behavior Modification Plan 09/2022- 1 06/2023 Q. Communication/Social Skills Goals and Objectives 09/2022- 2 06/2023 R. Math Goals and Objectives 09/2022- 2 06/2023 2022-2023 1 page

U. S. Life Skills Goals and Objectives 09/2022- 2 06/2023 T. Reading/Language Arts Goals and Objectives 09/2022- 2 06/2023 Counseling Report and Goals April 2023 1 page

V. Occupational Therapy Report and Goals April 2023 4 pages

W. Speech and Language Report and Goals May 2023 4 pages

X. Teacher’s Report April 2023 3 pages

Y. Affidavit of [REDACTED] 09/19/2023 12 pages

Z. Request for Evaluation and IEP 11/29/2023-11/30/2023 3 pages

AA. Letter with 10 Day Notice 06/20/2023 2 pages

BB. Enrollment Contract 08/31/2021 21-22 2 pages

CC. Attendance Record 06/28/2022 21-22 1 page

DD. Affidavit of [REDACTED] 09/18/2023 1 page

EE. Enrollment Contract 09/06/2022 22-23 2 pages

FF. Attendance Record 06/27/2023 22-23 1 page

GG. Affidavit of [REDACTED] 09/18/2023 1 page

IHO EXHIBITS

i. Pre-Hearing Conference Transcript 07/28/2023 7 pages IHO

ii. Status Conference Transcript 08/15/2023 11 pages IHO

iii. Pre-Hearing Conference Summary and Order 08/15/2023 4 pages IHO

iv. Due Process Hearing Transcript APPENDIX [REDACTED] Information Term Used In FOFD [REDACTED] Student [REDACTED] Mother of Child/Parent(s) [REDACTED] Parent Attorney/Representative [REDACTED] District Attorney/Representative [REDACTED] Private School [REDACTED] Program Director [REDACTED] Executive Director 09/26/2023 88 pages IHO

Footnotes

[1] Exhibit P-A.

[2] Id.

[3] Id.

[4] Id.

[5] This hearing officer did not attend the settlement conference and it was not on the record.

[6] Exhibit IHO-i.

[7] Exhibit IHO-ii.

[8] Id.; Exhibit IHO-iii.

[9] Exhibit IHO-iv at p. 24.

[10] Id. at p. 25.

[11] Exhibit D-2 at p. 1.

[12] Exhibit D-1.

[13] Exhibit P-Z at p. 3.

[14] Id. at p. 1.

[15] Exhibit D-5 at p. 1.

[16] Id. at p. 1-2.

[17] Exhibit D-2.

[18] Exhibit P-Y at p. 4.

[19] Id.

[20] Id.

[21] Id.

[22] Id. at p. 5.

[23] Id.

[24] Id.

[25] Id.

[26] Id.

[27] Id. at p. 7.

[28] Id.

[29] Id. at p. 10.

[30] Exhibit P-E, Exhibit P-P.

[31] Exhibit P-Y at p. 11.

[32] Id.

[33] Exhibit P-D; Exhibit P-O.

[34] Exhibit P-Y at p. 3; Exhibit IHO-iv at p. 43.

[35] Exhibit P-BB at p. 2; Exhibit P-DD.

[36] Id.

[37] NYS Educ. Law § 4404(1)(c).

[38] 20 U.S.C. § 1400 (d)(1)(A).

[39] 34 C.F.R. § 300.13).

[40] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).

[41] Endrew F. v. Douglas County School District RE–1, 580 U.S. 386 (2017).

[42] (1) Was the district’s program legally adequate? (2) Was the parent’s proposed placement appropriate? (3) Would it be equitable and fair to require the district to pay? Burlington School Committee, et al. v. Massachusetts Department of Education et. al., 471 U.S. 359 (1985); Florence County School District Four, et al. v. Shannon Carter, 510 U.S. 7 (1993).

[43] SRO Appeal No. 23-090 (“…this bare presentation of its case is not encouraged, and in many instances, may result in a finding that the district failed to meet its burden of proof…”).

[44] Endrew F., 580 U.S. at 404.

[45] 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).

[46] 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).

[47] Gagliardo, 489 F.3d at 112.

[48] Id., quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006).

[49] Frank G., 459 F.3d at 364-65.

[50] Id. at 364; see Gagliardo, 489 F.3d at 115.

[51] 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).

[52] Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65.

[53] Exhibit P-Y at p. 2.

[54] Id.

[55] Id.

[56] Id.

[57] Id. at p. 11.

[58] Id. at p. 12.

[59] Id.

[60] Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65.

[61] Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246-47 (2009).

[62] E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014).

[63] Exhibit P-Z at p. 1.