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FINDINGS OF FACT AND DECISION
Case Number: 249465
Student’s Name: REDACTED
School District: N.Y.C. Dept. of Ed.,
Impartial Hearing Officer: Teril Holston, Esq.
Date of Filing: June 29, 2023
Hearing Requested by: Parent
Date of Hearing: September 7, 2023
Record Close Date: September 12, 2023
Date of Decision: September 12, 2023
NAMES AND TITLES OF PERSONS WHO APPEARED
September 7, 2023
For the Student:
REDACTED
For the Department of Education:
REDACTED
INTRODUCTION
This matter comes before the undersigned Hearing Officer at the request of Petitioners, the parents of the student, an REDACTED-year-old school student classified as a student with a disability under the Individuals with Disabilities Education Act (“IDEA”); New York State Education Law; and the New York State regulations.
On June 29, 2023, Petitioners filed a Due Process Compliant (“Complaint” or “DPC”) against the New York City Department of Education (“NYC DOE” or “DOE” or “District”) alleging that the District failed to provide the student with a Free and Appropriate Public Education (“FAPE”) for the 2023-2024 school year, in that the District’s IEP program was not reasonably calculated to confer an educational benefit, and failed to recommend an appropriate school placement (P-A)1. The Petitioners are seeking tuition reimbursement for their unilateral placement of the student at Private School, a private program not approved by the Commissioner of Education for the education of students with disabilities for the 2023-2024 school year (Id.). Furthermore, the parent alleges that the equities support their claim for tuition reimbursement for the school year at issue (Id.).
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 the student FAPE for the 2023-2024 school year, b) the Private School offers the student with specially designed instruction sufficient to meet student’s needs, and c) the equities support the Parents.
PROCEDURAL HISTORY
On June 30, 2023, the undersigned was appointed to conduct an impartial hearing. On August 15, 2023, a prehearing conference was held. On September 7, 2023, the virtual impartial hearing on the merits of the DPC commenced and concluded. The record closed on September 12, 2023.
At the hearing, the District’s representative did not present any documentary evidence or call any witnesses in support of the District’s case.
The Parent, through their representative, submitted to documents (Ex. P-A though P-O),[2] including the affidavit testimony of the Private School Principal and the parent, in support of the Parent’s case. All of the documents were admitted into evidence without objection from the District. The Parent rested and the DOE advised that it had no further statement to make or testimony or documents to offer. The parent’s representative gave a closing statement.
FINDINGS OF FACT
1 Exhibits shall be referred to as follows: “P” for Parent Exhibit; “D” for the District’s or Department’s Exhibits; and “IHO” for the Impartial Hearing Officer’s exhibits.
After a full review of the record generated at hearing, I make the following findings of fact and determinations3:
The student is an REDACTED-year-old who has been attending Private School since the 2020-2021 school year (P-O). The student has Down Syndrome and an intellectual disability (P-O). The student has been evaluated by the Private School and is performing at a low first grade level (P-N). Prior to the start of the 2022-2023 12-month school year, On January 25, 2023, the CSE convened and classified the student with an Intellectual Disability and recommended the student be placed in a 12:1:1 special class in several subjects with Adaptive Physical Education (5 times per week), Speech Language Therapy (1x30:1 and 1x30 2:1), Occupational Therapy (2x30:1 and 1x30 2:1), and Physical Therapy (2x30) at a District 75 school (P-B; P-C; P-O).
The parents provided notice to the District on June 15, 2023, indicating that they disagreed with the IEP recommendations and the school placement and would seek to unilaterally place the student at the Private School for the 2023-2024 school year (P-B). On June 29, 2023, the District responded to the parent’s notice encouraging parent to file a due process complaint (P-D). Private School is a private special education program co-located with a general education school, college preparatory school servicing students from kindergarten through 12th grade focusing on students with Down Syndrome and learning disabilities (P-E; P-F). The student began attending Private School in September 2021 for the 2023-2024 school year (P-F; P-H; PI). The classrooms include one teacher and one to two teaching assistants (P-E). The school also offers other related services based on the needs of the students (P-G).
The parent signed a contract with Private School for the 2023-2024 academic school year on June 24, 2023, with the tuition cost of $102,000, inclusive of all fees (P-G). The parents have not paid any of the fees or tuition costs for the 2023-2024 school year due to their income (P-H; P-I).
APPLICABLE LEGAL STANDARD
The Individuals with Disability Education Act (“IDEA”) establishes that students with disabilities are entitled to a free and appropriate education (“FAPE”).[4] A “free appropriate public education 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 3 Although only portions of the evidence are referenced herein, the testimony and documents were reviewed and considered, in full. the instruction.”[5] In order to demonstrate that a FAPE is being provided, the school district must show “that it complied with the procedural requirements set forth in the IDEA, and that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits.”[6] The student's recommended program must also be provided in the least restrictive environment with non-disabled peers.7
The family seeks tuition reimbursement for the unilateral placement of the student in Private School for the 2023-2024 and 2023-2024 school years and the cost of related services. As set forth in Florence County Sch. Dist. Four v. Carter, 510 U.S.[7] (1993); Sch. Comm. Of Burlington v. Dep’t of Educ., 471 U.S. 359 (1985) it is well established that a District may be required to reimburse parents for tuition payment to a private school if the services offered by the District were inadequate or inappropriate, the services selected by the parents were appropriate under the IDEA, and equitable considerations support the parent’s claim for reimbursement. Thus, consideration of such a claim has been expressed by a three-prong test: (1) was student denied FAPE; (2) the appropriateness of the Parent’s unilateral placement; and (3) a balancing of the equities.
The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE8. A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction."[9] “To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”[10] Further, “an IEP is not a form document” and it should be constructed after carefully evaluating the student.[11]
An appropriate program begins with an IEP which accurately reflects the results of the 1) student’s present levels of performance; 2) provides for the use of appropriate special education services to address the child's special education needs; 3) establishes annual goals which are related to the child's educational deficits; 4) identifies transitions services; 5) provides a start and end date to the recommended program and services; and 6) criteria and evaluation procedures for the measurement of goals.[12]
Special education services must be provided by the district in conformity with the student's
8 20 U.S.C. § 1415[f][3][E][i]. IEP.[13] A denial of a FAPE occurs if the district deviates from substantial or significant provisions of the student's IEP in a material way and thereby precludes the student from the opportunity to receive educational benefits.[14]
However, school districts are not required to "maximize" the potential of students with disabilities15, but must provide "an IEP that is 'likely to produce progress, not regression,' and ... affords the student with an opportunity greater than mere 'trivial advancement'"16. The IEP must be "reasonably calculated to provide some 'meaningful' benefit"17.
The burden of persuasion and proof is by the preponderance of the evidence standard, which requires a finding that the existence of a fact is more probable than not. When the evidence is evenly balanced, the party with the burden loses. The burden of proof at an impartial hearing is on the district, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement18. Accordingly, the burden of production and persuasion is on the District for the first and third prongs and on the Parent for the second prong.
DISCUSSION
A. Prong I: FAPE
It is asserted in the DPC that the DOE failed to provide the student with a FAPE for the 2023-2024 school years for a number of reasons. As to Prong I of the Burlington/Carter standard, the DOE failed to meet its burden. The District submitted no relevant evidence or witnesses to demonstrate it provided the student with a FAPE in for the school year at issue. A review of the hearing record offers no explanation as to how the CSE made its recommendation, how the IEP appropriately describe the Student, whether the IEP is meaningfully calculated to confer educational benefit, or whether the school identified by the District was sufficient to meet the student’s needs. In short, the District declined to “offer a cogent and responsive explanation for their decisions” in creating that 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”.[19]
15 Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998], at 132.
16 Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130.
17 Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192.
Educ. Law § 4404[1][c]; see R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 [2d Cir. 2012]. The District failed to provide any defense of the program recommended for the student. Therefore, the undersigned is constrained to find that the District failed to offer the student a FAPE for the 2023-2024 school year.
B. Unilateral Placement In this case, as the District did not offer the student a FAPE for the 2023-2024 school year, the next issue to determine is whether the Parent’s unilateral placement of the student at Private School was appropriate. The Parent argues that the Private School is an appropriate unilateral placement for the student as it provides instruction and services that are specifically designed to meet the student’s unique needs and that enable the student to make meaningful progress there. For the reasons below, the Parent’s unilateral placement was appropriate.
Parents need not show that the placement provides every special service necessary to maximize the student's potential.[20] When determining whether the parents' unilateral placement is appropriate, that placement must be “reasonably calculated to enable the child to receive educational benefits.”[21] A private placement is only appropriate if it provides education instruction specially designed to meet the unique needs of a student.[22]
A private school placement must be “proper under the Act”23, i.e., the private school must provide an educational program which meets the student's special education needs.[24] 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.[25] The private school need not employ certified special education teachers or have its own IEP for the student.[26] The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement:
“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
23 Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370 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.”[27]
Moreover, where the District failed to provide the student with a FAPE, the District is precluded from arguing that the testing, evaluations, or assessments introduced by the Parent’s and utilized by the unilateral placement are not sufficiently comprehensive evaluations of the student’s functioning levels and needs, as it is the District that retains the requirement to comprehensively evaluate the student.[28] a. Student Needs
In this case, the student’s educational needs are identified by the Private School Principal (P-N). The Principal testified that the student’s evaluations and needs were carefully assessed before enrollment and when being placed into a class setting with similarly situated peers (P-N). The student’s “levels of knowledge and development in subject and skill areas including activities of daily living, level of intellectual functioning, adaptive behavior, and his expected rate of progress in acquiring skills, are significantly impaired.” (P-N). The student also presents with expressive, receptive, and pragmatic language deficits, along with delays in gross motor, fine motor development and sensory processing (P-N). The student is performing on a first grade level requiring small group and 1:1 individualized instruction (P-N).
b. Program
The Private School is a private special education program co-located with a private parochial school, created for students with Down Syndrome and other learning disabilities, offering all services during its school day (P-E; P-F; P-N). During the 2023-2024 school year, there are approximately 60 students enrolled in Private School. The Private School provides small group instruction in all subjects (id). The Private School provides a wholly individualized plan geared to each student’s needs, while developing goals appropriate for the student. Specifically, for the 2023-2024 school year, the student was placed in a classroom with twelve total students, one lead teacher, and two assistant teachers (P-N). The student also receives Occupational Therapy, four 30-minute sessions per week; Physical Therapy, two 30-minute sessions per week; and Speech Therapy, three 30-minute sessions per week (P-K). The Private School program also offers many daily opportunities for the student to interact with general education peers (P-O).
c. Progress
With respect to the student’s progress at Private School, a finding of progress is not required for a determination that a student's unilateral placement is adequate, but it is a relevant factor to be considered.[29] However, here the parent and the Principal testified that the student has been making progress in the Private School (P-N; P-O).
Based on all of the above, the parent has met the burden that the Private School is an appropriate placement for the student for the 2023-2024 school year as required.
The weight of the evidence demonstrates that the 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."[30] Of note, the District offered no evidence concerning the appropriateness of Parent’s unilateral placement, nor challenging the equities in this action with any witnesses or evidence. Further, the District had the opportunity to cross-examine the Parent’s witnesses, and chose not to do so. Under these circumstances, I find that the Parent’s witnesses and documentary evidence are credible.
C. Equitable Considerations
Equitable considerations are relevant in determining relief “because the authority to grant reimbursement [under the IDEA] is discretionary.”[31]
“With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412 [a][10][C][iii]; 34 CFR 300.148[d]; E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school]; C.L., 744 F.3d at 840 [noting that "[i]important to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA"]).
Reimbursement may also be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to their removal of the student from public school, or by written notice 10 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] This statutory provision "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."[33] Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision.[34] Parents of students enrolled in private school are not exempted from 10-day notice requirements.[35]
The Second Circuit has recently reiterated that "[t]he ten-day notice requirement gives school districts an opportunity to discuss with parents their objections to the IEP and to offer changes to the IEP designed to address those objections—all before the parents enroll their child in a private school and file a due process complaint" and that "if parents unreasonably reject the school district's proposed changes to the IEP, or are otherwise uncooperative, courts and hearing officers are fully empowered to deny them reimbursement"[36]
However, the hearing officer must excuse the failure to provide timely notice if, in her discretion, she determines that the reason for the lack of timely notice is that the school district prevented the parents from providing the notice, the parents had not received the procedural safeguards notice advising of the requirement to provide notice, or compliance with the notice requirement would likely result in physical harm to the student.[37]
In the instant case, the parent provided the necessary Ten-Days’ Notice of their concerns with the District’s offer of a FAPE for the student for the 2023-2024 school year on June 15, 2023 (P-C). Therein, the family detailed their specific concerns with the recommendations and provide notice of their intention to unilaterally place the student (id.). The hearing record is void of any evidence to demonstrate that the District made any efforts to resolve the family’s concerns before the school year began.
By way of relief, family seeks 90% direct payment of the tuition to the Private School, for the secular portions of school day and instruction. The record establishes that parent incurred an obligation to pay the Private School (P-G; ).
Direct tuition funding is relief encompassed by the equitable remedial powers inherent in IDEA. See e.g. Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 406 (S.D.N.Y. 2011) (parents may seek direct funding in the instance in which, “due to a lack of financial resources, [parents of a student with a disability] have not made tuition payments but are legally obligated to do so”). I find that the unilateral tuition costs are extensive and may exceed the Parent’s ability to fund and await reimbursement, and the Parent filed a DPC (P-I). Equity demands that the DOE fund the student’s Private School tuition to the extent that the parent was unable to do so in this instance.
In balancing the equities, I find in favor of the Parent. To the extent possible, the Parent has participated in all aspects of the special education process. I find no issue with the reasonableness of the costs, including tuition, associated with the Private School and the Student is currently enrolled for the 2023-2024 school year.
CONCLUSION
Based on a review of the record and the findings mentioned above, the undersigned makes the following findings:
• The District failed to provide the student with a FAPE during the school year at issue.
• The parent’s unilateral placement at Private School was appropriate and equitable considerations support an award of full tuition reimbursement and direct funding for the 2023-2024 school year.
• The undersigned has reviewed the parent’s remaining contentions and find them to be either unnecessary to this decision, without merit, beyond my jurisdiction, too vague to be of use, or without sufficient basis in the record for a finding and award of relief.
Accordingly, any relief not specifically discussed in this decision is denied, and all the Parent’s remaining claims not discussed herein are dismissed with prejudice.
ORDER
IT IS HEREBY, ORDERED, that the New York City Department of Education shall reimburse the Parents for the full cost of all tuition and fees paid for the student’s unilateral placement at Private School for the 2023-2024 school year within 30 calendar days of this Order.
DATED: SO, ORDERED
9/12/2023 /s/ Teril Holston
Teril Holston, Esq., IHO
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.
IMPARTIAL HEARING OFFICER'S
CERTIFICATION OF THE RECORD
I, Teril Holston, Impartial Hearing Officer in this matter, do hereby certify that the below Index of Exhibits included within this Findings of Fact and Decision itemizes the entire record before me. I further certify that the materials included in the record are either the original or a true copy of the original materials that were provided to me in this matter.
DATED: CERTIFIED BY
9/12/2023 /s/ Teril Holston
Teril Holston, Esq., IHO
CASE EXHIBITS
IHO EXHIBITS
DISTRICT’S EXHIBITS
PARENT’S EXHIBITS
REDACTED
APPENDIX A – PERSONALLY IDENTIFIABLE
INFORMATION
REDACTED
Footnotes
[2] A more detailed list of exhibits is attached.
[4] See, 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 US 49 (2005).
[5] Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 188 (1982).
[6] See, Application of Child with a Disability, Appeal No. 05-061, quoting, Rowley at 206.
[7] See, Walczak v. Florida Union Free Sch. Dt., 142 F.3rd 119 (2nd Cir. 1998).
[9] Rowley, 458 U.S. at 203.
[10] Endrew F. v. Douglas Cnty. Sch. Dist. RE-1, 137 S. Ct. 988, 999
[11] Id.
[12] See, Walzczak, supra; Id., Appeal No. 00-005.
[13] 20 U.S.C. § 1401[9][D]; 34 CFR 300.17[d]; 20 U.S.C. § 1414[d]; 34 CFR 300.320.
[14] T.L. v. New York City Dep't of Educ., 2012 WL 1107652, *14 [E.D.N.Y. Mar. 30, 2012]; D.D-S. v. Southold Union Free Sch. Dist., 2011 WL 3919040, at *13 [E.D.N.Y. Sept. 2, 2011]; A.L. v. New York City Dep't of Educ., 812 F. Supp. 2d 492, 503 [S.D.N.Y. 2011]; A.P. v. Woodstock Bd. of Educ., 370 Fed. App'x 202, 205, 2010 WL 1049297 [2d Cir. Mar. 23, 2010]; Van Duyn v. Baker Sch. Dist. 5J, 502 F.3d 811, 821-22 [9th Cir. 2007]; Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 [5th Cir. 2000].
[19] Endrew F., 137 S.Ct. at 1002.
[20] Frank G. v Bd. of Educ., 459 F.3d 356, 364-65 (2d Cir. 2006)
[21] Id.; see Gagliardo, 489 F.3d at 115.
[22] 20 U.S.C. § 1401[29]; 34 CFR 300.39[a][1]; Educ. Law § 4401[1]; 8 NYCRR 200.1[ww]; Rowley, 458 U.S. at 188-89.
[24] See, Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129.
[25] Carter, 510 U.S. at 14
[26] Id.
[27] Gagliardi, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65.
[28] see 34 CFR 300.305[c]; 8 NYCRR 200.4[b][5][iii]; A.D. v. Bd. of Educ., 690 F. Supp. 2d 193, 208 [S.D.N.Y. 2010] [finding that a unilateral placement was appropriate even where the private school reports were alleged by the district to be incomplete or inaccurate and finding that the fault for such inaccuracy or incomplete assessment of the student's needs lies with the district]; see also Application of the Dep't of Educ., Appeal No. 21-194; Application of the Dep't of Educ., Appeal No. 20-131; Application of the Dep't of Educ., Appeal No. 18-125; Application of a Student with a Disability, Appeal No. 180-049; Application of a Student with a Disability, Appeal No. 15-076; Application of a Student Suspected of Having a Disability, Appeal No. 15-038; 17 Application of a Student with a Disability, Appeal No. 14-033; Application of a Student with a Disability, Appeal No. 14-028; Application of a Student Suspected of Having a Disability, Appeal No. 14-003; Application of the Dep't of Educ., Appeal No. 13- 198; Application of the Dep't of Educ., Appeal No. 13-072; Application of a Student with a Disability, Appeal No. 12-027
[29] Gagliardo, 489 F.3d at 115, citing Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26-27 (1st Cir. 2002)
[30] Frank G., 459 F.3d at 364.
[31] Frank G., 459 F.3d at 363-64 (quoting, Burlington, 471 U.S. at 374).
[32] 20 U.S.C. § 14129(a)(10)(C)(iii)(I); see 34 CFR 300.148(d)(1)
[33] Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 (1st Cir. 2004).
[34] Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 (1st Cir. 2004); Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 (6th Cir. 2003); Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 (1st Cir. 2002); see Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68).
[35] S.W. v New York City Dep't of Educ., 646 F. Supp. 2d 346, 361-63 (S.D.N.Y. 2009).
[36] Bd. of Educ. of Yorktown Cent. Sch. Dist. v C.S., 990 F.3d 152, 171 (2d Cir. 2021).
[37] See 20 U.S.C. § 1412(a)(10)(C)(iv); 34 C.F.R. § 300.148(e)(1)