New York City Department of Education, Impartial Hearing Decision

Case Number: 601253 – NYC: 249238

FINDINGS OF FACT AND DECISION

Case Number:	249238
Student’s Name:	REDACTED
School District:	N.Y.C. Dep’t. of Educ.
Impartial Hearing Officer:	John Henry Olthoff
Date of Filing:	06/23/2023
Hearing Requested by:	Parent
Date of Hearings:	08/03/2023, 09/25/2023, 10/19/2023
Date of Decision:	11/03/2023

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 3, 2023

For the Student:

REDACTED, Esq., Attorney

For the Department of Education:

REDACTED, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 25, 2023

For the Student:

REDACTED, Esq., Attorney

For the Department of Education:

REDACTED, Esq., Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 19, 2023

For the Parent:

REDACTED, Esq., Attorney

REDACTED, Founder and Head of School (“Founder”), REDACTED (“Private School”)

REDACTED, Parent (“Parent”)

For the Department of Education:

REDACTED, Esq., Attorney

BACKGROUND

On June 23, 2023, Parents, through Counsel, initiated a due process complaint (“DPC”) against Respondent New York City Department of Education (“DOE”), pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. (“IDEA”), The Regulations of the Commissioner of Education, 8 N.Y.C.R.R. § 200.5 and Section 504 of the Rehabilitation Act. On June 27, 2023, I was appointed as the Impartial Hearing Officer (“IHO”) in this matter.

The parties entered into a Pendency Agreement on July 6, 2023, requiring DOE to fund Student’s placement at REDACTED (“Private School”) until a final decision issues in this proceeding. A Settlement and Pre-Hearing Conference (“PHC”) was held on August 3, 2023. The impartial hearing was held on September 25 and October 19, 2023. DOE waived its opening statement, entered no documents into the record, did not call any witnesses, did not cross examine Parents’ witnesses, and waived its closing statement. Parent entered twelve (12) documents into the record and presented two witnesses, including Parent, via affidavit.

LEGAL FRAMEWORK

A School District’s Obligation to Provide a FAPE

The Individuals with Disabilities Education Act, 20 U.S.C. § 1400, et seq. (“IDEA”), requires school districts to provide a free appropriate public education (“FAPE”) to students with disabilities, which consists of special education and related services designed to meet students’ unique needs. The IDEA also seeks to ensure that the rights of students with disabilities, and their parents/guardians, are protected. Forest Grove School Dist. v. Y.M., 557 U.S. 230, 239 (2009); Bd. of Educ. of Hendrick Hudson C.S.D. v. Rowley, 458 U.S. 176, 206-07 (1982).

A school district provides a FAPE to a student with a disability when it complies with the various procedural requirements of the IDEA, and the school district’s Committee on Special Education (“CSE”) develops an Individualized Education Program (“IEP”) consistent with those procedural requirements and is reasonably calculated to enable the student to receive educational benefits. Rowley, supra, 458 U.S. at 206-07; T.M. v. Cornwall C.S.D., 752 F.3d 145, 151, 160 (2d Cir. 2014).

Under the IDEA, the obligation to identify and evaluate students, and to develop and implement IEPs for students with special education needs rests solely on the school district. In New York it is the school district that bears the burden of proof, including the burden of production and persuasion, regarding any issue at an impartial hearing, except for the appropriateness of a unilateral placement, where the burden shifts to the parent. N.Y. Educ. Law § 4404(1)(c).

If a parent alleges procedural violations of the IDEA, an IHO may find that a student did not receive a FAPE if such procedural violations: 1) impeded the student’s right to a FAPE; 2) significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of FAPE to the student; or 3) caused a deprivation of educational benefits. See 20 U.S.C. §1415(f)(3)(E); 34 C.F.R. §300.513(a)(2); 8 N.Y.C.R.R. §200.5(j)(4)(ii); see also Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 (2007).

For a district to provide for “merely more than de minimis” progress from year to year is insufficient: the U.S. Supreme Court has opined that the essential function of the IEP is to set out a plan for pursuing academic and functional advancement for the disabled student, and that such educational program must be reasonably calculated to enable the student to make progress appropriate in light of the child’s unique circumstances. See Endrew F. v. Douglas Cty. School Dist. RE-1, 137 S. Ct. 988, 999, 1001, 2017 U.S. LEXIS 2025 (2017).

A school district’s failure to offer or provide a FAPE for a disabled student may arise out of many different scenarios, including multiple procedural violations of IDEA requirements by the district, see R.E. v. New York City Dept. of Educ., 694 F.3d 167, 189-91 (2d Cir. 2012), and/or a substantively inadequate and inappropriate IEP. See Rowley, supra, 458 U.S. at 192. “Multiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not.” R.E., supra, at 190-91; see also M.H. v. N.Y.C. Dept. of Education, 685 F.3d 217, 245 (2d Cir. 2012); Werner v. Clarkstown C.S.D., 363 F. Supp.2d 656, 659 (S.D.N.Y. 2005).

A school district’s CSE is required to assess a student in all areas related to the suspected disability, including, where appropriate, health, vision, hearing, social and emotional status, general intelligence, academic performance, communicative status, and motor abilities. See 8 N.Y.C.R.R. § 200.4(b)(6)(vii); see also 34 C.F.R. § 300.304(c)(4). The evaluation must be sufficiently comprehensive to identify all of the student’s special education needs, whether or not commonly linked to the disability category in which the student has been identified. 8 N.Y.C.R.R. § 200.4(b)(6)(ix); see also 34 C.F.R. § 300.304(c)(6); R.Z. v. City Sch. Dist. of New Rochelle, 2018 U.S. Dist. LEXIS 56564 (S.D.N.Y. 2018). Additionally, part of any reevaluation of a student, the CSE and other qualified professionals shall review the existing evaluative data on a student and determine whether additional evaluative data are needed. 8 N.Y.C.R.R. § 200.4(b)(5).

The Regulations of the N.Y.S. Commissioner of Education “are designed to ensure that students with disabilities are suitably grouped, requiring that such students be placed with students who have similar levels of academic achievement, social and physical development, and management. needs.” E.P. v. New York City Dep’t of Educ., 2016 U.S. Dist. LEXIS 77891 (S.D.N.Y. June 10, 2016); see also 8 N.Y.C.R.R. § 200.6(h)(2). “New York state regulations implementing the IDEA clearly constrain a school district’s choice of placement classroom.” E.P., supra, citing J.F. v. New York City Dep’t of Educ., 2013 U.S. Dist. LEXIS 63178, 2013 WL 1803983, at *2 (S.D.N.Y. April 24, 2013). Moreover, if a student has been successfully educated by means of a particular methodology or curriculum, and any subsequent placement must transition from that program to a new one in order to benefit meaningfully from the new placement, it must be part of the IEP, or the IEP is invalid.

If a school district defends its IEP, “the use of retrospective testimony about what would have happened if a student had accepted the district’s proposed placement must be limited to testimony regarding the services described in the student’s individualized education program (“IEP”). Such testimony may not be used to materially alter a deficient written IEP by establishing that the student would have received services beyond those listed in the written IEP.” R.E., supra, at 174. Testimony regarding services that do not appear on a student’s IEP may not be used to rehabilitate a deficient IEP or amend that IEP after the fact. R.E., supra, at 185.

School authorities can be expected 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.” Endrew F., supra, at 1002.

There can be no delay in implementing a student’s IEP, and the district is required to have an IEP in effect at the beginning of each school year for every student with a disability in that district’s jurisdiction. The failure to do so is a clear denial of FAPE. 20 U.S.C. §1414(d)(2)(A); 34 C.F.R. §300.323(a); 8 N.Y.C.R.R. §200.4(e)(1)(ii); see also, Cerra v. Pawling C.S.D., 427 F.3d 186, 194 (2d Cir. 2005) (school districts must ensure that a child’s IEP is in effect by the beginning of the school year and the parents must be provided a copy); K.L. v. New York City Dept. of Educ., 2012 WL 4017822, at *13 (S.D.N.Y. Aug. 23, 2012), aff'd, 530 Fed. App'x 81 (2d Cir. 2013); B.P. v. New York City Dept. of Educ., 841 F. Supp. 2d 605, 614 (E.D.N.Y. 2012) (district fulfilled its procedural obligation by providing the IEP before the first day of school); see also SRO Appeal No. 20-110; 20-038; 15-099.

In Mr. and Mrs. A. York v. New York City Dep’t of Educ., 769 F. Supp. 2d 403 (S.D.N.Y. 2011), the Court held that failure to offer any placement to the student prior to the start of the school year constitutes a denial of FAPE. In F.B. v. New York City Dep’t of Educ., 132 F. Supp 3d 522 (S.D.N.Y. 2015), DOE did not communicate the school placement to the parents as of the deadline for enrollment at a private school, but before the start of the public-school year. The Court, citing M.O. v. New York City Dep’t of Educ., 793 F.3d 236, 244-45 (2d Cir. 2015), held that parents have the right to obtain relevant information in a timely fashion about DOE’s proposed placement and found denial of FAPE. The Court further held that parents had a procedural right to inquire whether the proposed school location had the resources set forth in the IEP. The Court explained that a parent’s IDEA-guaranteed right to meaningfully participate means, at a minimum, the right to obtain relevant and timely information as to the proposed school, and that the parent’s procedural rights do not stop the moment the CSE meeting ends. In C.U. ex rel. G.U. v. N.Y.C. Dep’t of Educ., 23 F. Supp 3d 210 (S.D.N.Y. 2014), the Court held because the procedural protections in the IDEA are intended to ensure substantive outcomes, see Rowley, supra, at 206, it follows that parents have a procedural right to evaluate the school assignment, i.e., the right to acquire relevant and timely information as to the proposed school. In G.U., supra, the student had autism and a seizure disorder, meaning that the proposed school’s ability to implement the IEP affected the student’s safety as well as education.

School districts do not have “carte blanche” to assign a child to a school “that cannot satisfy the IEP requirements.” T.Y. v. New York City Dep’t of Educ., 584 F.3d 412, 420 (2d Cir. 2009).

Additionally, parents who challenge a proposed IEP are not foreclosed from all prospective challenges to a proposed school location’s ability to implement the IEP. R.E., supra. “To conclude otherwise would require parents to send their child to a facially deficient placement school prior to challenging that school’s capacity to implement the child’s IEP, which is “antithetical to the IDEA reimbursement process.” See V.S. ex rel. D.S. v. New York City Dep’t of Educ., 25 F. Supp.3d 295, 300 (S.D.N.Y. 2014); M.O. supra, at 244-45.

Reimbursement/Direct Funding for a Nonpublic School

When a school district fails to offer or provide a FAPE, that school district may be obligated to reimburse parents for the costs of private educational services obtained for their disabled student. Generally, reimbursement of such costs is required when: 1) the services or educational program and placement offered by the school district are inadequate or inappropriate for the student; 2) the services or educational program and placement selected by the parents and provided to the student are appropriate; and 3) the equitable considerations and related factors support the parent’s claims. Florence Cty. School Dist. Four v. Carter, 510 U.S. 7 (1993); School Committee of Burlington v. Dept. of Educ., 471 U.S. 359, 369-70 (1985); R.E., supra, 694 F.3d at 184-85.

The second “prong” of the Burlington/Carter analysis requires the Parent to show that the private placement implemented must be “proper under the Act,” i.e., the private placement offered an educational program which met the student’s special education needs. See Gagliardo v. Arlington C.S.D., 489 F.3d 105, 112-15 (2d Cir. 2007); Walczak v. Florida U.F.S.D., 142 F.3d 119, 129 (2d Cir. 1998).

Parents seeking reimbursement bear the burden of showing that the private placement for their disabled child was appropriate. Generally, the same factors and criteria that apply in evaluating the district’s placement are also applicable in determining whether the parent’s placement is appropriate. Gagliardo, supra, 489 F.3d at 112; see also Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006). Thus, a parental placement is appropriate if it provides instruction specially designed to meet the unique needs of the student. 20 U.S.C. §1401(29); N.Y. Educ. Law §4401(1); Hardison v. Bd. of Educ., Oneonta City S.D., 773 F.3d 372, 386 (2d Cir. 2014); Gagliardo, 489 F.3d at 114-15.

In Gagliardo, supra, the Second Circuit held that the specific standard for determining whether the Parent have satisfied their burden of showing the appropriateness of their unilateral placement is:

[The Parent] need only demonstrate that the placement provides educational instruction specifically 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.

Parental placement need not be located at a state-approved school or institution to be eligible for reimbursement. Florence County Sch. Dist. v. Carter, 510 U.S. 7, 13-14 (1993). In fact, the parental placement school or institution need not comply with federal or state regulatory procedures and requirements regarding the provision of special education services to students with disabilities. For example, a non-state-approved entity is not required to develop their own IEPs for students, nor are they mandated to provide services in compliance with an IEP. Id.

A parent need only show that, at the time of the placement, that the placement was “likely to produce progress, and not regression.” Gagliardo, supra, at 112. The necessary inquiry regarding the appropriateness of a unilateral placement is whether the program reasonably could have been expected, at the time of placement, to offer meaningful educational benefit to a student. See, e.g., B.R. ex rel. K.O. v New York City Dep’t of Educ., 910 F. Supp 2d 670, 677 (S.D.N.Y. 2012).

A parent is not held to the same legal standard as a school district in demonstrating the appropriateness of a unilateral placement as a school district is in showing it offered a student a FAPE. See, e.g., C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836-37 (2d Cir. 2014). (“The test for the Parent’s private placement is that it is appropriate, and not that it is perfect.”).

School districts that seek “to avoid reimbursing parents for the private education of a disabled child can do one of two things: give the child a free appropriate public education in a public setting, or place the child in an appropriate private setting of the State’s choice. This is the IDEA’s mandate, and school officials who conform to it need not worry about reimbursement claims.” Carter, supra, at 15.

Neither the New York Education Law nor the IDEA obligates a parent to prove at hearing that they are unable to afford the cost of their child’s placement at an appropriate private school. Special education placements are to be provided “at no cost to the parent.” N.Y. Educ. Law § 4401(1); Letter to Hampden, 49 IDELR 197 (OSEP 2007). The entitlement to a FAPE cannot depend on a family’s ability to front the cost of a unilateral placement and then wait, potentially years, for reimbursement. See, e.g., D.A. v. N.Y.C. Dept. of Education, 769 F. Supp.2d. 403, 427 (S.D.N.Y. 2011).

Equitable Considerations

The third prong of the Burlington/Carter analysis is that a parent’s claim for reimbursement (or direct payment) must be supported by equitable considerations. Reimbursement/direct payment may be reduced, or denied, if a parent fails to timely raise the appropriateness of an IEP, fails to make their child available for an evaluation, or acts in an unreasonable manner. The latter often involves a parent who obstructed or was uncooperative in the district’s efforts to meet their obligations under the IDEA. See C.L. supra, at 840.

When considering equitable factors, courts “may consider many factors, including, inter alia, whether plaintiff’s unilateral withdrawal of her child from the public school was justified, whether plaintiff provided the Department with adequate notice of the withdrawal, whether the amount of private school tuition was reasonable, whether plaintiff 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). See also C.L., supra, at 840 (where parents’ pursuit of a private placement “was not a basis for denying their tuition reimbursement, even assuming, as the District contended before the IHO, that the parents never intended to keep [student] in public school.”) (emphasis added).

FINDINGS OF FACT

Student is a [REDACTED] year-old boy who resides with his family in Brooklyn. (Exs. A, B). Student has diagnoses of autism, developmental coordination disorder, and attention deficit hyperactivity disorder (“ADHD”). (Ex. L).^[1] Student has low frustration tolerance and responds to stressful situations with oppositional and/or aggressive behaviors toward teachers and peers. (Id.). Student requires Applied Behavior Analysis (“ABA”) interventions during transport. (Id.). Student has attended Private School since the 2019-2020 SYs and has attended pursuant to unappealed IHO decisions during the 2021-2022 and 2022-2023 SYs. (Id.).

DOE failed to provide any evidence that it convened a Committee on Special Education (“CSE”), developed an IEP, or sent Parents a Prior Written Notice (“PWN”) or School Location Letter (“SLL”) for Student for the 23/24 SY.

By Ten Day Notice (“TDN”) dated June 19, 2023, Parent notified DOE of her intention to re-enroll Student at Private School for the 12-month 23/24 SY and seek public funding for the placement. (Ex. B).

Parent entered into a contract with Private School for enrollment during the 23/24 SY on May 31, 2023. (Ex. D). Parent has paid $1,000.000 toward the total cost of Student’s placement for the 23/24 SY. (Ex. E).

Private School is a non-approved school that utilizes a unique teaching model with an emphasis on transdisciplinary education…including ABA, speech and language therapy (“SL”), occupational therapy (“OT”), physical therapy (“PT”), mental health services, social skills instruction, extended day services, and family training. (Ex. K).

Student has demonstrated a need for a 12-month extended school year as well as extended day services in order to benefit from his educational program. (Exs. K, L). Student has demonstrated progress across domains in his program at Private School. (Ex. I).

DOE failed to present any evidence that its failure to develop an IEP or recommend a public school location for Student for the 23/24 SY was in any way attributable to any action or inaction on Parent’s part.

ANALYSIS AND CONCLUSIONS OF LAW

DOE Failed to Offer or Provide Student with a FAPE

As an initial matter, DOE chose not to enter any documents or present any witnesses or opening or closing arguments, effectively conceding that it failed to meet its burden under the New York Education Law. Far from offering a cogent explanation for its recommendations, DOE instead opted to leave all of the heavy lifting at the hearing to Parent.

DOE failed to do even the bare minimum with regard to its legal obligation to Student for the 23/24 SY, which I read as DOE’s tacit assent that Parents were justified in placing Student at Private School.

Parent’s Proposed Educational Placement is Appropriate

The record establishes that Student has benefited from the educational program provided at Private School. (Exs. I, J, K, L).

Private School’s Founder provided extensive credible and unrebutted testimony concerning Private School and how the program Student receives is meeting his significant needs. (Ex. K). Student’s team are highly trained and proficient in implementing his Behavior Intervention Plan (“BIP”). (Id.).

I give considerable weight to the unrebutted affidavit testimony of Private School’s Founder with respect to how Student’s program is designed to meet his multi-faceted special education needs. (Ex. K). Parent has therefore established by a preponderance of the evidence that Private School provides Student with special instruction, supported by related services, that will enable him to receive an educational benefit.

Equitable Considerations Favor Parents

As an initial matter, DOE’s failure to create an IEP or recommend a school placement for Student for the 23/24 SY hangs like an anchor around its neck. The Court in N.R. v. N.Y.C. Dept. of Educ., 2009 U.S. Dist. LEXIS 27273, *20-21 (S.D.N.Y. 2009) noted that “the Court is unaware of, any case in which equitable considerations favored a school district that failed to offer a disabled child a school placement prior to the commencement of the school year.” As a consequence, DOE’s failures stand on their own and are in no way fairly traceable to any action (or inaction) on Parents’ part. See, e.g., E.M, supra. Parent’s interest in a nonpublic placement in light of DOE’s failures is entirely reasonable and, as a matter of law, is no bar to Student’s placement in, or funding for, such a placement. C.L., supra.

While the reasonableness of the cost of tuition is an equitable factor (E.M., supra), DOE has failed to offer any evidence that a placement exists that provides a similar level of services and support and costs less than Private School. In fact, DOE raised no objection whatsoever as to the cost of Student’s placement at Private School. Therefore, I cannot but conclude that the cost of Private School is reasonable.

While a showing of financial hardship is unnecessary to demonstrate that a parent is eligible for direct funding for a unilateral placement (D.A., supra), Parent testified that the family’s annual income is such that they are unable to pay upfront for Student’s placement and then have to wait for reimbursement. (Ex. L).

DECISION AND ORDER

IT IS HEREBY ORDERED that DOE procedurally and substantively denied Student a FAPE during the 2023-2024 school year; and

IT IS FURTHER ORDERED that Parents’ unilateral placement at Private School is appropriate; and

IT IS FURTHER ORDERED that equitable considerations favor a full award of the cost of Student’s placement at Private School for the 2023-2024 school year; and

IT IS FURTHER ORDERED that DOE shall

1. Reimburse Parents for all out-of-pocket costs associated with Student’s placement at Private School during the 2023-2024 school year, including but not limited to the $1,000.00 Parents have paid as of May 31, 2023 (Ex. E); and

2. Reimburse and/or pay directly to Private School the remaining tuition balance for the 2023-2024 school year; including the cost of

a. Extended day services;

b. 12-month extended school year services; and

3. Provide appropriate transportation to and from Private School; and

4. Reimburse and/or directly fund the cost of a 1:1 ABA therapist for Student during periods of transport, including public transport; and

IT IS FURTHER ORDERED that DOE shall provide a copy of this decision to any person participating in any review of Student’s placement that takes place during the next twelve (12) months from the date of this decision, at least three (3) days in advance of any such meeting.

Dated: New York, NY

November 3, 2023

/s: John Henry Olthoff/

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within forty (40) days 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, pursuant to Section 4404 of the New York 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 twenty-five (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, the 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 (2) 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 are available at http://www.sro.nysed.gov.

DOCUMENTATION ENTERED INTO THE RECORD BY DOE

None

DOCUMENTATION ENTERED INTO THE RECORD BY PARENT

Exhibit	Description	Date	# of Pages
A	Due Process Complaint	06/26/2023	5
B	10-Day Notice	06/19/2023	3
C	Private School Program Description	23/24 SY	1
D	Student Enrollment Contract	05/31/2023	17
E	Tuition Affidavit	10/02/2023	2
F	Student Summer Schedule	23/24 SY	7
G	Student Fall Schedule	23/24 SY	7
H	Student Attendance	23/24 SY	1
I	Progress Report	06/16/2023	21
J	FBA/BIP	06/10/2023	12
K	Affidavit of Founder	10/12/2023	5
L	Affidavit of Parent	10/12/2023	3

Footnotes

[1] “(Ex. __)” and “(Exs. __)” refer to an exhibit or exhibits entered into the record, while “(Tr. __)” refers to the page in the transcript cited.