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FINDINGS OF FACT AND DECISION
| Case Number: | 249319 |
| Student’s Name: | Student |
| Date of Birth: | Birthdate |
| District: | School District |
| Hearing Requested By: | Parents |
| Date(s) of Hearing: | 8/7/23; 9/18/23; 9/26/23; 10/25/23 |
| Actual Record Close Date: | November 3, 2023 |
| Time Sensitive: | Yes ☐ No ☒ |
| Hearing Officer: | Virginia Tillyard |
NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS
SPECIAL EDUCATION HEARINGS DIVISION
In the matter of Student, a Minor, by her/his Parent(s),
FINDINGS OF FACT AND DECISION
against Impartial Hearing No. 249319
THE NEW YORK CITY DEPARTMENT OF EDUCATION
Virginia Tillyard, Impartial Hearing Officer
BACKGROUND AND POSITION OF THE PARTIES
Parent, through counsel, filed a due process complaint on June 27, 2023 and an amended due process complaint (the “DPC”)[1] on July 7, 2023 under the Individuals with Disabilities Education Act, 20 U.S.C. section 1400 ff (the “IDEA”), Article 89 of the New York State Education Law and Section 504 of the Rehabilitation Act of 1973, against the New York City Department of Education (the “DOE”), alleging that the DOE denied Student a free appropriate public education (“FAPE”).
In the DPC the Parent alleges, among other things, substantive and procedural violations in connection with the development of Student’s individualized education services program (IESP) developed on February 25, 2021 (the “2021 IESP”)[2]. As a remedy in the DPC, Parent requests tuition funding for Student’s attendance at the Special Program for the 2021-2022 school year.[3] As more fully discussed below, I find that (a) the DOE failed to meet its burden of showing that it offered Student a FAPE for the 2021-2022 school year and (b) the Special Program provides Student educational instruction specifically designed to meet Student’s unique needs. However, I am denying Parent’s requested relief based on other grounds, as further discussed below.
JURISDICTION
The IDEA and its implementing regulations and Article 89 of the New York State Education Law and its implementing regulations provide jurisdiction for this decision.[4]
PROCEDURAL HISTORY
I was appointed as Impartial Hearing Officer to this case on 6/28/2023. At the prehearing conference on August 7, 2023, Parties agreed to merits hearing dates of September 18 and September 26, 2023. On September 12 the Parent’s Attorney emailed me requesting an adjournment of the September 18 hearing because “additional time is needed to prepare for the hearing”.[5] I denied the request because parties had adequate time to prepare. Parent did not distribute any disclosures before the hearing on September 18, 2023, and on that date again requested an adjournment, to which the DOE objected. The adjournment was denied, again, because parties had adequate time to prepare. The DOE submitted an exhibit packet and all the DOE’s exhibits were admitted. The DOE presented its case on September 18, 2023. However, I accommodated the Parent by allowing Parent’s Attorney to present her case in the form of live witness testimony on September 26, 2023.[6] Parent presented the testimony of Student’s mother and the Special Program Witness. The DOE’s attorney cross-examined both of Parent’s witnesses. Both parties made an oral closing.
LEGAL FRAMEWORK
Decisions of impartial hearing officers must be on substantive grounds based on a determination of whether the student received a free appropriate public education (“FAPE”), 8 NYCRR § 200.5(j)(4)(i). Under the IDEA and New York law, where there is procedural violation resulting in a deprivation of educational benefits to a student or the student’s right to a free appropriate public education is significantly impeded, a hearing officer may find that a child did not receive a FAPE.[7]
The IDEA is comprehensive statutory framework established by Congress to ensure that students with disabilities are afforded FAPE. See, 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 US 49 (2005). 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). Two purposes of the IDEA are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected. 20 U.S.C. § 1400(d)(1)(A)-(B).
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. 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); see also Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 (2d Cir. 2006), cert denied, Board of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 WL 2982269 (Oct. 15, 2007). These three conditions constitute the Burlington/Carter test in a tuition reimbursement case.
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)). The standard required is a preponderance of the evidence. 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).
FINDINGS OF FACT AND DECISION
The Student
Student is now [REDACTED] years old and for the 2021-22 school year was unilaterally placed in the 7th grade at the Special Program at the Private School. The Private School is a private, general education religious school in Brooklyn, New York. The Special Program is housed in the Private School and is a division of a larger “umbrella” program that operates out of a total of five locations at several different private general education religious schools.[8] Student attended the 6th grade general education program in the Private School until he was “kicked out”[9]some time shortly after the IEP meeting of February 25, 2021.[10]
Student’s Needs and Potential
The DOE conducted a psychoeducational evaluation of Student on January 7, 2021.[11] The evaluator, an independent school psychologist, conducted an intelligence test (WISC-V) and an academic test (KTEA-3). The referral paragraph in the evaluation report indicates that Student also had behavioral issues, stating that Student “gets angry because he does not like rules and he wants to be the boss. This leads to problems with teachers”.[12] Student’s full scale score on the intelligence test was in the middle of borderline range, 4th percentile. Many of the subtests were in the borderline range. His lowest score was on the verbal comprehension scale, said to be “most predictive of school success”.[13] Academically, he was rated at 4th to 5th grade level on reading and writing subtests, and 2nd – 3rd grade on math subtests.[14]
The 2021 IESP was Student’s most recent at the time he was placed in the Special Program. It identifies Student as a student with a disability with a classification of Learning Disability, parentally placed in a private school, and recommends a ten month placement, with special education and related services as follows:
• Special education teacher support services (SETSS): five periods per week, group, direct
• Counseling Services, 1 X 40 minutes per week, individual[15]
The 2021 IESP includes results from the January 2021 evaluation. It quotes the evaluator’s comments that Student was cooperative, polite and responsive but notes that Student’s teacher reported that he gets easily frustrated and gets angry if his teachers do not explain things to him. It also reflects the Parent’s concerns that Student gets frustrated and does not have a lot of friends.[16]
The Special Program Witness provided more details on Student’s social and behavioral problems. He was very impulsive and could not control himself. He tended to “use his hands” rather than words. He threw things, destroyed property, and did not act within group norms. He lacked focus and found it hard to follow directions. He did not have close friends, and was unable to control his language, prefacing remarks to someone with uncalled-for curse words. The Special Program Witness’ testimony as to Student’s academic performance levels concurs generally with Student’s levels of performance as indicated in the 2021 IESP, with the added detail that he did not speak in full sentence and relied on slang phrases, could not read his own handwriting, and could not write a full paragraph.[17] She described Student’s behavioral challenges as “largely superseding” his academic delays.[18]
The Parent testified at hearing regarding Student’s needs, her communications with the DOE and the CSE, and her income. I did not find her to be a very credible witness. She avoided answering some questions, appeared to be confused, failed to give details when asked to clarify, and repeated generalized answers rather than responding to the question at hand.
The DOE’s case – provision of a FAPE (Prong 1)
As defined in the IDEA, a FAPE consists of special education and related services provided at no cost to a parent. Special education means “specially designed instruction...to meet the unique needs of a child with a disability” and “related services” are various supportive services “as may be required to assist a child with a disability to benefit from special education”.[19] A school district has offered a student a FAPE when (a) the board of education has complied with the IDEA’s procedures and (b) the IEP developed through the IDEA's procedures is reasonably calculated to enable the child to receive educational benefits. Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). The IDEA’s procedures require the school district’s IEP Team, in developing an IEP, to consider (i) the strengths of the child; (ii) the concerns of the parents for enhancing the education of their child; (iii) the results of the initial evaluation or most recent evaluation of the child; and (iv) the academic, developmental, and functional needs of the child. 20 U.S.C. § 1414(d)(1)(A)(i)(I)-(IV). An IEP Team is a group of individuals, including the student’s parents. 20 U.S.C. § 1414(d)(1)(B).
A FAPE consists of “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.” Rowley, supra. 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, No 15- 827, 2017 WL 1066206, 137 S.Ct. 988, 69 IDELR 174 (U.S. Mar 22, 2017). When an IEP is disputed, a school district is expected to be able to offer a “cogent and responsive explanation for their decisions” to show that a student’s IEP meets that standard. The court in Endrew F. said that “the adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.” A student's recommended program must also be provided in the least restrictive environment with non-disabled peers. See 34 C.F.R.§§300.114 through 300.117; Walczak v. Florida Union Free Sch. Dist., supra.
The Second Circuit has confirmed that its pre-existing FAPE standard is consistent with the Supreme Court’s decision in Endrew F.[20]
The DOE’s failure to offer before the start of the school year an interim or permanent placement that can implement the student’s IEP is a procedural violation that may amount to denial of FAPE. See, e.g. Mr. and Mrs. A. v. New York City Dep’t of Educ., 56 IDELR 42 (S.D.N.Y. 2011), citing Bettinger v. New York City Dept. of Educ., 2007 U.S. Dist. LEXIS 86116 (S.D.N.Y. 2007); N.R. v. Dept. of Educ., 2009 WL 874061 (S.D.N.Y. March 31, 2009); G.U. v. New York City Dep't. of Educ., 23 F. Supp. 3D 210 (S.D.N.Y. 2014); V.S. v. New York City Dep't. of Educ., 25 F. Supp. 3D 295 (E.D.N.Y. 2014).
At hearing, the DOE waived making an opening statement. It rested its case on its documentary evidence, cross examined Parent’s witnesses, but did not put on any witnesses of its own. In this instance, I find that the DOE failed to meet its burden under Prong I of the Burlington/Carter standard.
In limited cases, documents alone may be sufficient to prove the appropriateness of the CSE’s recommendations.[21] Here, the DOE submitted the 2021 IESP, the 2021 psychoeducational evaluation, and a SESIS events log.[22] There is no prior written notice relating to the 2021 IESP in the record, although it appears that the CSE generated one and sent it to the Parent.[23] As a result, there is no description in the record of all assessment or reports the CSE used in the CSE’s decision in proposing the 2021 IESP.[24] Although the 2021 IESP itself identifies the January 2021 evaluation as one source, it is not clear what else, if anything the CSE considered. It is therefore not possible to determine, based solely on the DOE’s exhibits, that at the time the CSE made its recommendations, the recommendations were reasonably calculated to enable Student to make progress appropriate in light of his circumstances. Additionally, to meet the required standard, the DOE’s evidence should have provided a “cogent and responsive” explanation for the CSE’s decisions.[25] Its evidence does not meet that standard. I therefore find that Student was denied a FAPE for the 2021-2022 school year.
The Parents’ Case (Prong 2)
Appropriateness of the Special Program unilateral placement
The next issue to determine is whether the parent’s unilateral placement of the student in the Private Program for the 2021-2022 school year was appropriate. For the reasons described below, I find that Parent did not met her burden with respect to the appropriateness of the Private Program.
As described by the Second Circuit, whether a parent’s unilateral placement is appropriate ultimately turns on whether the placement is "reasonably calculated to enable the child to receive educational benefits." Frank G., supra. To meet that burden, the parents must establish, by a preponderance of the evidence, that the unilateral placement provides “educational instruction specifically designed to meet the unique needs of the student”. However, the private school placement “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements”. The private placement need not provide certified special education teachers or have its own IEP for a student. Parental placements are not subject to the same mainstreaming requirements as a school district placement. Id, citing Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d. Cir. 2007). Courts in the Second Circuit have explained that the criteria applicable to a Prong 1 analysis (i.e. the Rowley/Endrew F. tests) apply with respect to the appropriateness of a unilateral placement. In Frank G., supra, the Second Circuit said:
Subject to the foregoing exceptions, the same considerations and criteria that apply in determining whether the School District's placement is appropriate should be considered in determining the appropriateness of the parents' placement. Ultimately, the issue turns on whether a placement -- public or private -- is "reasonably calculated to enable the child to receive educational benefits." Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982); Muller ex rel. Muller v. Comm. on Special Educ., 145 F.3d 95, 105 (2d Cir.1998).[26]
A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The Second Circuit has provided the following guidance in determining whether parents have met their burden:
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, supra, 489 F.3d at 112 (quoting Frank G, 459 F.3d at 364-65).
The Parent asserts in the DPC that for the 2021-22 school year, Student required an “educational program that placed him in a full-time special education class of up to 12 students, 1 teacher, and 1 assistant, that offered individualized support, modified and simplified instruction and direction, repetition, review, modeling, prompting, social skills instruction, and the development and implementation of a behavioral plan”.[27]
The Special Program
The Special Program Witness was a Program Supervisor for the Special Program for the 2021-22 school year. The Special Program ran a middle school program at the Private School during that year. The Special Program Witness split her time between the Private School and the Special Program administrative offices, which were elsewhere. She has a master's degree and license in general education, a master's degree and license in special education, and a master's degree and license in literacy. She has been a licensed behavior analyst (LBA) since 2008. She is also a licensed school building leader.[28] I found her to be a credible witness based on the level of detail in her responses. She observed Student in and out of the classroom, and although her day-to-day familiarity with Student appears to have been limited since she worked mostly in a supervisory role, she co-ordinated directly with Student’s supervising BCBA, spoke to Student directly, and had access to details of Student’s behavior via a data collection system that the Special Program implemented consistently throughout the school year.[29] She coordinated with staff overseeing Student’s program with respect to his academic, social and behavioral needs, and co-ordinated adjustments to his program.
The Special Program Witness described the Special Program as a middle school program for the 2021-22 school year that serviced students who were behaviorally challenged and language delayed or academically delayed. Using the applied behavioral analysis (ABA) methodology, the Special Program modified and accommodated a general education curriculum for individual students based on their individualized needs and strengths. It provided opportunities for interacting with typically developing peer models at three different times during each school day.[30]
Student’s program at the Special Program
The Special Program placed Student in a class of twelve students, with a licensed special education teacher and an assistant. The Special Program began by conducting a functional behavioral assessment, and then designed a behavior intervention plan (BIP) that identified the function of his disruptive behaviors, responses to the behaviors, and rewards for replacement behaviors. The Special Program also created a comprehensive treatment plan targeting all areas of his academics, language, communication, reading, writing, math, and communication. Data on Student’s progress in the plan was input to a data collection platform called “Rethink” designed for the New York City school system to align ABA methodology and classroom instruction.[31] Student’s program implemented a system of color coding to assist self organization, and various methodologies to address his reading and writing needs.[32] Student’s teachers encouraged him to learn by involving him in hands-on projects in the lab or classroom. They helped him learn and retain information by showing him materials in 3-D, and giving him arts and crafts projects.[33]
The Special Program also provided Student with the related services of occupational therapy, speech-language therapy and counseling, from all licensed providers.[34]
Progress
The hearing record also contains evidence to support a finding that the student made progress at the Special Program.[35]
Based on the record, including the testimony of the Special Program Witness, I find that the Special Program provided educational instruction specifically designed to meet Student’s unique needs. Parent has met her burden with respect to the Special Program.
Equities
Equitable considerations are relevant in determining relief “because the authority to grant reimbursement [under the IDEA] is discretionary.” Frank G., 459 F.3d at 363-64 (quoting Burlington, 471 U.S. at 374). The IDEA states that tuition reimbursement may be reduced or denied in certain circumstances, including failing to provide the CSE with notice of the unilateral placement either at the most recent CSE meeting or by written notice not less than ten business days before their removal of a student from public school, failure to make a student available for evaluation by the district, or “upon a judicial finding of unreasonableness with respect to actions taken by the parents”.[36] Courts and hearing officers enjoy “broad discretion” in fashioning appropriate relief. Burlington, 471 U.S. at 374. In doing so, they may consider 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. E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014). Total reimbursement will not be appropriate if the cost of the private education was unreasonable. Carter, 510 U.S. 7.
Whether or not the parents cooperated with the CSE is a significant equitable consideration. The ten business days’ notice requirement "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools" (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 (1st Cir. 2004). 20 U.S.C. § 1412(a)(10)(C)(iv)(I) (bb) provides an exception to the ten business day notice requirement in the event a parent has not received notice of the ten business day requirement.[37] Certain New York cases have also denied tuition reimbursement where the parents had no intention of accepting a school district placement.[38]
Direct payment of tuition
Parent seeks direct payment to the Special Program of $100,000 for Student’s tuition, minus a deduction of $5,000 for a portion allocated to religious content.[39]
Direct tuition funding may be an appropriate equitable remedy. 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) (parents have a right to retrospective direct payment where the private school is willing to “take the risk that the parents will not be able to pay tuition costs” as long as the parents are legally obligated to do so). As the court in Mr. and Mrs. A. also noted, the United States Supreme Court has endorsed prospective relief in Burlington.[40] While an IHO may consider a parent’s financial abilities when deciding whether to order reimbursement or direct payment, the IDEA does not require the parent of a student with disabilities to establish a lack of financial resources as a condition to an award of direct payment of tuition, and hearing officers have broad discretion to grant appropriate relief, including direct payment. Cohen v. N.Y. City Dep't of Educ., 123 LRP 30221 (S.D.N.Y. 2023); Ferreira and Rojas v. N.Y.C. Dept’ of Educ., 123 LRP 9785 (S.D.N.Y. 2023) citing A.R. ex rel. F.P. v. N.Y.C. Dep’t of Educ., 2013 WL 5312537 (S.D.N.Y. 2013) and Mr. & Mrs. A., 769 F. Supp. 2d at 428; see also Erde ex rel. J.E. v. Banks, 2022 U.S. Dist. LEXIS 232797 (S.D.N.Y. 2022).
A parent must have an enforceable agreement with the entity providing a student’s services in order to obtain direct payment relief, which courts view as a question of standing to seek that relief or whether the parent has suffered an “injury in fact”. E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014).[41] A contractual responsibility to pay tuition constitutes an injury in fact. Id. E.M. considered two potential obligations that could fulfil this requirement. First, the court found that the parent had an express contractual obligation to pay the provider in the event the parent was not successful in obtaining DOE funding. Second, even if the first ground was not available, the court found an implied promise that the parent would “use her best efforts to pursue her statutory remedies to recoup the cost of tuition and repay” the tuition provider, an arrangement the court described as a “loan” obligation.[42]
Here, there is no enrollment contract or other agreement between the Special Program and the Parent in the record. Parent had the opportunity, however, to demonstrate the existence and terms of any such agreement via witness testimony. Careful examination of the entire record, including testimony at hearing, does not provide adequate demonstration that Parent here has incurred a financial obligation to the Special Program under the terms of a contract between the Special Program and the Parent. Similarly, there being no evidence in the record regarding the terms of Student’s enrollment in the Special Program, there is insufficient evidence of a “loan obligation”. The Special Program Witness only testified that the cost of Student’s tuition was “$12,000 per month for ten months”, and that Parent had not, to her knowledge, made any payments towards the cost.[43] However, she did not refer to any agreement between the Special Program and the Parent. The Parent only testified regarding the amount of her income, but not about whether she was obligated to pay Student’s tuition.[44]
Based on the foregoing, I conclude that the lack of definite evidence of an agreement and essential terms of an agreement between Parent and the Special Program means that, unfortunately, both direct payment and reimbursement must be denied in this case. Accordingly, Parent’s requests for direct payment and reimbursement are denied.
Other Issues
Although not necessary to this decision, I include below an analysis of the remaining considerations in this case.
Ten day notice considerations
The record in this case indicates that while Parent, through counsel,[45] on November 2, 2021 provided notice of her concerns with the 2021 IESP and requested an IEP instead, the Parent herself gave conflicting information to the CSE. The SESIS events log reports that before the meeting for the 2021 IESP the Parent indicated that she did not “want FAPE” and wanted an “IESP with services”. It also reports that Parent at the CSE meeting for the 2021 IESP Parent was “confused about the most recent TDN”, was “not seeking a public school placement” and wanted to keep Student at the Private School.[46] When confronted with this evidence at hearing the Parent denied that she had requested services and said she had asked for an IEP.[47]
Parent’s November 2, 2021 “ten day notice” also advised the DOE that absent a “timely and appropriate placement” for Student for the 2021-2022 school year, she intended to place Student in the Special Program, and seek tuition funding. No evidence was submitted at hearing describing the DOE’s response to the ten day notice. Since the DOE’s 2021-22 school year began on September 13, 2021,[48] the ten day notice was almost two months late. Both the Parent, at hearing, and Ex. 2 refer to an earlier letter, sent September 22, 2020, but there is nothing to indicate that the September 22, 2020 letter included notice of a unilateral placement. At hearing, Parent denied receiving a Procedural Safeguards Notice. However, later in the hearing she acknowledged she was notified of her rights at the meeting for the 2021 IESP, and it is clear from Ex. 2 and her testimony that she was acting on the advice of counsel as far back as September 22, 2020. Accordingly, I am not persuaded that any exception to the ten day notice requirement applies in this case and I would apply an equitable adjustment of 1/5 of the total.
Adjustment for religious component of the Special Program
In general, school districts are not required to fund portions of the school day devoted to religious activities. School districts are not required to fund services that go beyond what is necessary to provide a FAPE or provide religious instruction.[49] Here, the Special Program Witness allocated a total of $5,000 to religious studies.[50] However, there is no daily schedule in the record. Testimony showed that Student’s program included a religious portion from 8:45 to 9:30, four days a week.[51] Total instruction time at school appears to be a maximum of 35 hours per week, assuming a short break for lunch and recess (there is no indication exactly how much of the school day was devoted to lunch or breaks). I therefore find that an adjustment of 8.5% would be more appropriate.
I have reviewed Parents’ other requests and claims and find them either to be without merit, not supported by the record, not within my jurisdiction or beyond the scope of my authority. Accordingly, any relief not specifically discussed in this decision is denied, and all the Parents’ remaining claims not discussed herein are dismissed with prejudice.
ORDERS
IT IS HEREBY ORDERED that the Parent’s requested relief is denied.
November 3, 2023
________________________________
Virginia Tillyard, 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
CERTIFICATION OF IMPARTIAL HEARING OFFICER
I, Virginia Tillyard, Impartial Hearing Officer in this matter DO HEREBY CERTIFY that the below list of exhibits included in this decision, taken together with any prior submissions with certifications, identifies each exhibit admitted into evidence in the above matter as of this date.
In addition, the full record of this case, maintained by the district, includes all briefs, arguments or written requests for an order filed by the parties; all written orders, decisions or subpoenas issued by me; and transcripts of all proceedings on the record, along with any other applicable items described in 8 NYCRR §200.5(j)(5)(vi).
I FURTHER CERTIFY that upon information and belief, the materials included in the record are either the original or true copy of the original documents submitted in this matter.
Dated: November 3, 2023
__________________________________________
Virginia Tillyard, Impartial Hearing Officer
EXHIBITS ADMITTED INTO EVIDENCE
PARENT EXHIBITS
None
DOE EXHIBITS
| Exhibit | Document | Date | Pages |
|---|---|---|---|
| 1 | Individualized Education Services Program (IESP) (revision) | 02.25.2021 | 12 |
| 2 | Ten Day Notice and Fax cover sheet | 11.02.2021 | 2 |
| 3 | Psychoeducational Evaluation | 01.11.2021 | 6 |
| 4 | Pages from Events log | undated | 2 |
IHO EXHIBITS
| Exhibit | Document | Date | Pages |
|---|---|---|---|
| I | Emails | 8/7/23 - 9/11/23 | 2 |
| II | Emails | 9/12/23 – 9/13/23 | 1 |
| III | Emails | 10/12/23 | 2 |
Footnotes
[1] The due process complaint was not admitted as an exhibit, but is included in the record pursuant to 8 NYCRR §200.5(j)(5)(vi)
[2] Ex. 1
[3] Parties acknowledged at hearing that the reference to the 2022-23 school year in the first paragraph of the DPC is a typographical error and should refer to the 2021-22 school year. See Hearing Transcript. References to“Hearing Transcript” in this decision refer to the cumulative transcript of any hearings in this case. I am finalizing this decision before completion of the transcript of the hearing on October 25, 2023, which was solely for oral closing arguments.
[4] Since all the relief that Parent is requesting is available under the IDEA, I do not need to analyze any claims under Section 504.
[5] IHO Ex. II
[6] The Parent emailed this hearing officer again on October 12, 2023 and requested that some documents she attached be admitted to the record. The request was denied since hearings had finished and the DOE had already declined an opportunity to present rebuttal witnesses. See IHO Ex. III
[7] 20 U.S.C. § 1415 (f)(3)(E)(ii) states: Procedural issues In matters alleging a procedural violation, a hearing officer may find that a child did not receive a free appropriate public education only if the procedural inadequacies-- (I) impeded the child's right to a free appropriate public education; (II) significantly impeded the parents' opportunity to participate in the decisionmaking process regarding the provision of a free appropriate public education to the parents' child; or (III) caused a deprivation of educational benefits.
[8] Testimony of the Special Program Witness, Hearing Transcript
[9] Testimony of the Parent, Hearing Transcript
[10] See DOE Ex. 4-2
[11] Ex. 3
[12] Ex. 3-1
[13] Ex. 3-4
[14] Ex. 3-5
[15] Ex. 1
[16] Id.
[17] Hearing Transcript, pp. 56-60
[18] Hearing Transcript, p. 62
[19] See the IDEA’s definitions at 20 U.S.C. §1401.
[20] Mr. P. & Mrs. P. v. West Hartford Board of Educ., 885 F.3d 735 (2d Cir. 2018).
[21] See L. O. v. New York City Dep’t of Educ., 67 IDELR 225 (2d Cir. 2016); SRO Appeal Nos. 23-005, 23-090 and 19-054.
[22] Ex. 4
[23] See Ex. 4-1, references to “Prior Notice for Placement/Parentally Placed”
[24] Typically provided in the Doe’s form of Prior Written Notice under the heading “Description Of Each Evaluation Procedure, Assessment, Record, Or Report Used In The Decision To Propose Or Refuse The Action”
[25] As required by Endrew F.
[26] Frank G., supra (emphasis added). See also Mr. and Mrs. P., supra.
[27] Ex. A
[28] Hearing Transcript, pp. 45-46
[29] Hearing Transcript, pp. 53-54
[30] Hearing Transcript, p. 47
[31] Hearing Transcript, p. 64
[32] Hearing Transcript, pp. 64-72
[33] Hearing Transcript, p. 61
[34] Hearing Transcript, p. 72
[35] Testimony of the Special Program Witness, Hearing Transcript, pp. 66-72
[36] 20 U.S.C. §1412(a)(10)(c)(iii)
[37] “Notwithstanding the notice requirement in clause (iii)(1), the cost of reimbursement ...shall not be reduced or denied ...if...the parents had not received notice, pursuant to section 1415 of this title, of the notice requirement in clause (iii)(1);….”
[38] See, e.g. Carmel Cent. Sch. Dist., 375 F.Supp. 402 (S.D.N.Y. 2005).
[39] Hearing Transcript, p. 154
[40] “[I]t seems clear beyond cavil that "appropriate" relief would include a prospective injunction directing the school officials to develop and implement at public expense an IEP placing the child in a private school.”
[41] See also S.W. v. New York City Dep’t of Educ., 109 LRP 18611 (S.D.N.Y. 2009) and Ferreira, supra, which explains “A plaintiff has standing if she has suffered an actual or imminent injury in fact which is concrete and particularized, there is a causal connection between the injury and the defendant's actions, and it is likely that a favorable decision will redress the injury. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992). A contractual responsibility to pay tuition constitutes an injury in fact. E.M. v. N.Y.C. Dep't of Educ., 758 F.3d 442, 456 (2d Cir. 2014) ("[P]laintiff has adequately demonstrated that, as a result of the [DOE's] alleged failure to provide a FAPE, she has incurred a financial obligation to [a private school] under the terms of the enrollment contract. Plaintiff's contractual obligation itself constitutes an 'injury in fact' . . . that is 'redressable' by the direct tuition payment she seeks."); see also S.W., 646 F. Supp. 2d at 358.
[42] This hearing officer initially considered issuing a decision based on standing alone, which would have resulted in an order of dismissal under these circumstances. However, a complete analysis of the issues is included in view of the considerable time spent on this case.
[43] Hearing Transcript, p. 73-74
[44] Hearing Transcript, p. 106
[45] Ex. 2
[46] Ex. 4-2
[47] Hearing Transcript, pp. 106-110
[48] See NYC Department of Education School Year Calendar 2021-22
[49] See L.K. v. New York City Dep’t of Educ., 69 IDELR 90 (2d Cir. 2017). See also Leiman v. Smith, 70 IDELR 142 (4th Cir. 2017) (“the IDEA does not mandate that a school instruct a student in his preferred religious practices”).
[50] Hearing Transcript, p. 74
[51] Hearing Transcript, p. 75