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FINDINGS OF FACT AND DECISION
Case Number: 249225
Student’s Name: [REDACTED] 1
Date of Birth: [REDACTED]
School Service District: [REDACTED]
Impartial Hearing Officer: Eryn DeFontes, Esq.
Date of Filing: June 23, 2023
Hearing Requested by: Parent
Date of Hearing: August 4, 2023
Record Close Date: August 30, 2023
Date of Decision: August 30, 2023
For identifying information, see Appendix.
NAMES AND TITLES OF PERSONS WHO APPEARED: On August 4, 2023
Parent’s Attorney — Student
Parent/Guardian — Student
(DOE or District): — DOE
DOE Representative — DOE
BACKGROUND and PROCEDURAL HISTORY
This matter concerns a [REDACTED]-year-old Student, classified as a Student with a Disability under the Individuals with Disabilities Education Act (IDEA),[20] U.S.C. § 1400 et seq.[2] Student currently attends the Private School. The Parent filed a due process complaint (DPC) on June 23, 2023, alleging inter alia, that the DOE failed to provide Student with a free and appropriate public education (FAPE) for the 2023-2024 school year and requesting relief in the form of funding of tuition for the Student’s enrollment at the Private School for the 20232024 school year.[3] The undersigned Impartial Hearing Officer (IHO) was appointed on June 26, 2023. A pre-hearing conference was held on July 24, 2023 and a hearing on the merits was held on August 4, 2023. The Parent proffered exhibits A-J, which were admitted into the record with no objection from the DOE. [4]
The DOE conceded denial of FAPE for the school year at issue and thereby proffered no evidence or witnesses.[5] The DOE declined to cross-examine Parent’s witnesses yet maintained that the equities do not favor the Parent.[6] The undersigned IHO now renders this Findings of Fact and Decision upon review of all testimony and evidence admitted to the record.
JURISDICTION
A decision in this matter is being rendered pursuant to the IDEA and its implementing regulations in addition to the New York State Education Law and its implementing regulations. 7 Parent further raises claims pursuant to Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794 (Section 504). Regulations implementing Section 504 in the context of educational institutions appear at 34 C.F.R. Part 104. However, as relief in the instant matter is available pursuant to the IDEA, any such claims are hereby subsumed by the IDEA and thus will not be addressed separately. Lastly, Parent raised claims pursuant to the Americans with Disabilities Act (ADA).[8] As this tribunal does not maintain jurisdiction to hear ADA matters, any claims or relief set forth pursuant to this section shall not be considered herein.
LEGAL FRAMEWORK
A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (IEP) and is further defined as “educational instruction that is designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction.”[9] The Supreme Court has found that “[a] reviewing court may fairly expect those authorities [school district staff] to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.”[10] A board of education may be required to pay for educational services obtained for a child by the child's parent, if (1) the services offered by the board of education were inadequate or inappropriate, (2) the services selected by the parent were appropriate, and (3) equitable considerations support the parent's claim.[11] These three conditions constitute the Burlington/Carter framework employed in tuition reimbursement cases.
School districts have the burden of proof, including the burden of persuasion and burden of production in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement.[12] The standard required is a preponderance of the evidence. 13
FINDINGS OF FACT
Burlington/Carter Prong I: Failure to Provide a FAPE 20 U.S.C. §1415(i)(2)(C)(iii); see also Walczak v. Florida Union Free Sch. Dist., 142 F.3rd 119 (2nd Cir. 1998).
A FAPE is offered to a student when: (a) the DOE complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA’s procedures, is reasonably calculated to enable the student to receive educational benefits. [14]
In this case, the DOE conceded that it denied the Student a FAPE for the 2023-2024 school year.[15] Consequently, the Parent is entitled to a presumption as to the truth of the asserted facts underlying claims set forth in the documentary evidence and testimony, to the extent such facts are credible and not contradicted by the hearing record. Accordingly, the credible, uncontroverted evidence and testimony establishes that the DOE denied the Student a FAPE for the 2023-2024 school year through its failure to develop an appropriate program and placement for the Student for the 2023-2024 school year. [16]
Burlington/Carter Prong II: Appropriateness of the Parents’ Unilateral Placement
When a parent unilaterally places their child in a private program and seeks funding and/or reimbursement for that program, they must demonstrate the program they have selected is appropriate to meet their child’s needs.[17] Parents are not barred from an award of tuition reimbursement or funding even if the private program does not meet the IDEA definition of a FAPE. The selected program need not employ certified special education teachers or develop its own IEP for the student, and parents’ selection of a program that has not been approved by the state does not bar reimbursement.[18] Parents need not show that a private placement provides every special service necessary to maximize their child’s potential, but only that it is likely to produce progress and not regression and provides “educational instruction specially designed to meet the unique needs of the . . . child, supported by such services as are necessary to permit the child to benefit from instruction.” [19]
The Student in this case is currently enrolled at the Private School. 20 The Parent submitted ample evidence establishing that the Private School is an appropriate placement that provides the Student with educational instruction specifically designed to meet the Student’s unique educational needs, supported by services that are necessary to permit the Student to benefit from that instruction.
For example, the evidence shows that the Private School is a small, 12-month, selfcontained, specialized private school for students who, like the Student in this case, present with speech and language delays as well as other learning challenges. A typical student enrolled at the Private School further presents with either an impairment or a related disability that impacts their learning progress and social development. [21]
The Student in this case scored in the “poor” and “below average” range when assessed in skills such as expressive vocabulary, sentence expression, grammatical morphemes, inferences, pragmatic language, and receptive vocabulary, as documented in a 2023 speech language evaluation.[22] The Student further demonstrated challenges in bilateral coordination, “sequential and simultaneous coordination of the upper and lower limbs”, and “standing on one foot without support.” 23 The Assistant Head of School testified via affidavit that the Student’s needs, which include 12-month programming, are addressed and provided for by the Private School:
[Student]requires a 12-month program to prevent significant academic and social regression….12-months of daily speech therapy and occupational therapy to meet the needs of her complex developmental profile, and she requires those speech and occupational therapies integrated into her daily curriculum.
[Student] receives 2x45 minute sessions of SLT per week in a 1:1 setting; and 2x45 minute sessions of OT in a 1:1 setting. Additionally, [Student] participates in two 30-min daily SLT groups with developmentally appropriate peers. The first daily SLT group is a language skills group that targets individualized receptive and expressive language goals in a group setting while the second daily SLT group focuses on social skills; helping [Student] and her peers develop and build upon play skills and enhance peer relationships.
[Student] participates in a daily 20-minute fine motor/handwriting group with developmentally appropriate peers. The fine motor/handwriting group curriculum is created by and led by an OT and classroom staff. Additionally, [Student] participates in OT group with developmentally appropriate peers twice per week for 45 minutes led by an OT with focus on gross motor and play skills in a small group setting. [24]
Accordingly, the uncontroverted evidence supports a finding that the Private School is the appropriate placement for the Student for the 2023-2024 school year, substantiated by Student’s progress “across all domains”, including academic and emotional advancement, in addition to specific progress relating to receptive language, spatial concepts and motor planning. [25]
The Student’s occupational therapist further remarked:
[Student] has improved her core strength…demonstrated an increase in her self-confidence this school year, leading her to be more enthusiastic about trying challenging or nonpreferred tasks. Now when faced with a challenge, [she] is more eager to try and trust that she can persist through the problem. She is able to sustain her effort without reverting to avoidant behaviors for over two minutes when given minimal to moderate verbal cues for encouragement…
Currently, when moments of challenge arise, such as frustration when completing a hard math problem or sadness about being unable to do an activity the way she wished,
[Student] is able to select a strategy to support her through these moments rather than becoming dysregulated. 26
Based upon the foregoing, the undersigned IHO finds that the Private School is an appropriate placement for the Student for the 2023-2024 school year, as the Private School addresses the Student’s needs in an individualized manner and provides the Student with the necessary services to enable the Student to make progress. The Student is further entitled to 12month special education programming and/or services. The DOE presented no evidence to the contrary.
Therefore, Parent has met the second prong of the Burlington/Carter framework for tuition funding and/or reimbursement.
Burlington/Carter Prong III: Equitable Considerations
When considering an award of tuition reimbursement, an IHO must also determine whether a balancing of the equities support the award, as “equitable considerations [relating to the reasonableness of the action taken by the parents] are relevant in fashioning relief.” [27]
When a school district fails to provide a student with a FAPE and the private placement is found to be appropriate, “the district court enjoys broad discretion in considering equitable factors relevant to fashioning relief.”[28] Direct and prospective funding are appropriate remedies in due process proceedings seeking payment for unilateral placements. [29]
In this case, the DOE representative asserted, “the parents were supposed to notify the District of their placement before June 1st. The record does not show any evidence of that happening. So the lack of notice is an equitable consideration in favor of the DOE, so any award towards the Parent should be duly reduced.” [30]
Such argument is rejected as the instant unilateral placement case is governed by the IDEA, yet the DOE representative appears to have conflated the requirements set forth pursuant to Educ. Law § 3602-c(2) 31 with the aforementioned IDEA statutory provision that provides, “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 student 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.”” 32
The hearing record clearly establishes that the Parent provided the DOE with the requisite statutory notice 33 and incurred an obligation to pay tuition in the amount of $118,450.00 for the 20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1]. Emphases added. 33 Id.; P-B. Ten-day notice (TDN) is dated June 16, 2023 and therefore deemed timely, as the Student began the Private School program on July 10, 2023. (Tr, 36:19-24).
2023-2024 academic school year. 34 Lastly, the Parent provided unrefuted testimony to establish that they cooperated with the DOE. 35
Accordingly, the DOE failed to establish that the equities do not favor the Parent and the Student is entitled to an award of tuition at the Private School for the 2023-2024 school year.
Attorney’s Fees
The DPC includes a claim for attorneys’ fees. 36 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. 37
Therefore, the undersigned IHO would be exceeding the permissible scope of authority by determining that Parent is the prevailing party entitled to costs. To the extent that Parent seeks reimbursement and/or payment of attorneys’ fees and costs from this IHO, such request is denied.
CONCLUSION
The DOE failed to provide the Student with a FAPE for the 2023-2024 school year. The Private School is the appropriate placement for the Student for the 2023-2024 school year and the Student is entitled to a 12-month school year and funding for the Private School for the 20232024 school year.
ORDER
Based on the foregoing, it is hereby:
34 P-D. The academic school year “begins July 2023 and ends June 2024”. 35 P-I-2. 36 P-A-3. 37 See 20 U.S.C. § 1415(i)(3)(B); Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 402 F.3d 332 (2d Cir. 2005); see also Application of a Student with a Disability, Appeal No. 08-008 (March 31, 2008); Application of a Child with a Disability, Appeal No. 06-109 (Oct. 27, 2006).
1. ORDERED that the DOE shall, within thirty (30) days of this Order, directly pay to the Private School the cost of tuition for the Student’s placement for the 2023-2024 12-month school year, in the sum of $118,450.00, minus any monies paid by the Parent for tuition for the 2023-2024 school year;
2. IT IS FURTHER ORDERED that the DOE shall, within thirty (30) days of this Order, upon proof of payment, reimburse the Parent for any monies paid to the Private School for the Student’s placement at the Private School for the 12-month 2023-2024 school year;
3. IT IS FURTHER ORDERED that within thirty (30) days of this Order the CSE shall convene a meeting to develop an appropriate educational program for the Student, which shall consider the evaluations referenced in this Decision and reflect Student’s eligibility for 12-month special education services and/or programs. SO ORDERED. DATED: August 30, 2023
ErynDeFontes
Impartial Hearing Officer
Eryn DeFontes, Esq.
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.
An appealing party's request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.
ADMITTED EXHIBITS
None
Footnotes
[2] The Student’s classification is not in dispute.
[3] P-A-3. Parent withdrew the claim for transportation (Tr. 24:18-20).
[4] Tr. 26, 27.
[5] Tr. 25:8-11.
[6] Tr. 26:1-10. The DOE Representative waived opening and closing statements. Tr. 31:19; 38:16.
[20] U.S.C. § 1400 et seq., 34 C.F.R. § 300 et seq., Educ. Law Art. 89 § 4404 et seq., 8 NYCRR § Part 200.
[8] See 42 USC 12101, et seq.
[9] See 34 C.F.R. § 300.13; Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
[10] Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. 386, 137 S. Ct. 988 (2017).
[11] See, School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993).
[12] NYS Educ. Law § 4404(1)(c).
[14] Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005).
[15] Tr. Tr. 25:8-11.
[16] See P-I-2, 3; A-3.
[17] A.D. ex rel. E.D. v. Bd. of Educ. of City Sch. Dist. of New York, 690 F. Supp. 2d 193, 206 (S.D.N.Y. 2010) (citing Frank G. v. Bd. Of Educ. Of Hyde Park, 459 F.3d 356 at 364).
[18] Id. (citing Carter, 510 U.S. 7 at 14).
[19] Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007). P-J-4.
[21] P-J-2 (Classroom ratios are 6:2:1 “six students with two teachers and a dedicated, licensed, Speech & Language Pathologist (“SLP”) in every classroom”).
[22] P-F-5, 6. P-G-2.
[24] P-J-5, 6; P-E.
[25] P-F-9-12; P-G; P-H-2-8. P-G-6, 7.
[27] See, Frank G., 459 F.3d at 363-64; see also 20 U.S.C. § 1412(a)(10)(C)(iii).
[28] Gagliardo, 489 F. 3d 105 at 112, citing Carter, 510 U.S. 7 at 16.
[29] See, Connors v. Mills, 34 F.Supp.2d 795 at 805-806, 132 Ed. Law Rep. 767 (N.D.N.Y., 1998), Mr. & Mrs. A. ex rel. D.A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403 (S.D.N.Y. 2011).
[30] Tr. 26:1-6. 31 Parents who have privately enrolled their child in a nonpublic school may seek educational "services" for their child with a disability by filing a request in the district where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made. 32