New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 250083

Student’s Name: [REDACTED]

School District: N.Y.C. Dep’t. of Educ.

Impartial Hearing Officer: John Henry Olthoff

Date of Filing: 07/03/2023

Hearing Requested by: Parent

Date of Hearing: 08/01/2023, 08/30/2023, 09/20/2023

Date of Decision: 10/16/2023

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 1, 2023

For the Student:

[REDACTED], Esq., Attorney

For the Department of Education:

[REDACTED], Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 30, 2023

For the Student:

[REDACTED], Esq., Attorney

For the Department of Education:

[REDACTED], Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 20, 2023

For the Parent:

[REDACTED], Esq.

[REDACTED] (“Parent”)

[REDACTED], (“Educational Director”)

For the Department of Education:

[REDACTED], Esq.

BACKGROUND

On July 3, 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 July 6, 2023, I was appointed as the Impartial Hearing Officer (“IHO”) in this matter.

The parties entered into a Pendency Agreement on July 24, 2023, requiring DOE to fund Student’s placement at Private School until a final decision issues in this proceeding. A Settlement and Pre-Hearing Conference (“PHC”) was held on August 1, 2023. The impartial hearing was held on August 30 and September 20, 2023. DOE entered ten (10) documents into the record but did not call any witnesses, did not cross examine Parents’ witnesses, and waived its closing statement. Parent entered thirteen (13) documents into the record and called two witnesses, including Parent.

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).

Parent 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 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 to proving 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 an [REDACTED] year-old boy who resides with his mother in [REDACTED], [REDACTED]. (Exs. A, M).^[1] Student has been diagnosed with autism spectrum disorder (“ASD”) and carries an IDEA classification of Autism. (Exs. K, 4, 8, 13, 14).

Student previously received Applied Behavior Analysis (“ABA”), in addition to other related services, during Early Intervention, and during preschool pursuant to an Individualized Education Program (“IEP”) DOE’s Committee on Preschool Special Education (“CPSE”). (Ex. M).

Student has attended Private School since the 2020-2021 SY pursuant to unappealed Findings of Facts and Decision (“FOFD”) for each school year. (Id.).

During the 23/24 SY, Student continues to attend Private School on a twelve (12)-month basis. (Exs. A, B, C). Private School is a special education school for students aged 5 to 21, who either have an ASD diagnosis or a related disorder. (Tr. 56). Students at Private School are diagnosed with a range of language and social, academic, and behavioral difficulties.” (Id.).

Student underwent an independent neuropsychological evaluation in 2020. (Ex. K). The independent evaluation confirmed Student’s autism diagnosis and recommended that he attend a class with a small student-to-teacher ratio in an educational program that uses the principles of ABA. (Id.).

DOE convened a Committee on Special Education (“CSE”) to develop an Individualized Education Program (“IEP”) for Student on December 22, 2022. (Exs. M, 4). The CSE recommended a class of 12:1+1 in a community school on a 10-month basis, with the related services of group and individual counseling, group and individual speech and language therapy (“SL”), and individual occupational therapy (“OT”). (Exs. 1, 4). The December 22, 2022 IEP does not recommend ABA therapy. (Ex. 4).

Parent received a Prior Written Notice (“PWN”) and School Location Letter (“SLL”) on May 23, 2023 indicating that DOE offered placement at P.S. 253 for the 23/24 SY. (Exs. M, 1).

Parent made several attempts to visit the proposed public placement but was unable to until September 2023. (Ex. M).

Parent provided DOE with Ten-Day Notice (“TDN”) of her intent to enroll Student at Private School for the 23/24 12-month on June 16, 2023. (Exs. B, M).

Student remains enrolled at Private School, where he attends an educational program which includes a small student-to-teacher ratio in an ABA-based program. (See, generally, testimony of Educational Director, Tr. 57-108).

Student has made considerable progress at Private School, including, inter alia, improvement in handwriting, increased ability to follow directions, and improvements in academic and daily living skills. (Exs. D, M).

ANALYSIS AND CONCLUSIONS OF LAW

DOE Failed to Offer or Provide Student with a FAPE

As an initial matter, DOE chose not to present any witnesses or offer any defense of its placement recommendation, and waived its opening and closing statements, 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.

Additionally, the record supports a finding that DOE denied Student a FAPE during the 23/24 SYs. The record supports the finding that Student requires a classroom setting with a small student-to-teacher ratio, and that Student requires ABA principles be woven into his school day in order to make progress, neither of which is offered in the December 7, 2022 IEP. (Ex. 4).

Additionally, the record supports a finding that Student requires a 12-month school year. (Exs. D, M). Educational Director credibly testified that Student “tends to forget previously mastered skills and he has difficulty generalizing whatever it is that he’s learning…if you would not have the 12 months, he would show lots of regression.” (Tr. 67). However, even if that fact was not established, DOE failed to rebut Parent’s assertion that Student requires an extended school year in order to make and maintain progress.

Moreover, Parent credibly testified that she was prevented from visiting DOE’s proposed school location until after even the 10-month school year began, which is an independent basis to determine that DOE denied Student a FAPE during the 23/24 SY.

Parent’s Proposed Educational Placement is Appropriate

The record establishes that Student responded to, and made progress with, ABA therapy in the home and in the classroom. (Ex. D). Educational Director provided extensive testimony affirming Student’s need for an ABA-based school placement. (Tr. 57-107).

Educational Director testified credibly that Student requires, and Private School provides, specialized instruction, supported by related services, that have enabled Student to make progress. (Id.). Specifically, Student receives positive reinforcements, has skills broken down, and constant monitoring of his behavior (Tr. 66). Student is placed with students who have similar needs and who can be positive peer models. (Tr. 69).

The record supports the finding that Parent has sustained her burden to demonstrate the appropriateness of Private School for Student for the 23/24 SY.

Equitable Considerations Favor Parent

Parent has demonstrated cooperation and attempts to collaborate with DOE in all respects concerning Student’s special education placement. (Exs. M). DOE’s failures stand on their own and are in no way fairly traceable to any action (or inaction) on Parent’s part. See, e.g., E.M, supra.

DECISION AND ORDER

IT IS HEREBY ORDERED that DOE procedurally and substantively denied Student a FAPE during the 23/24 SY; and

IT IS FURTHER ORDERED that DOE shall do the following:

1. Continue to fund Student’s placement at Private School for the remainder of the 23/24 SY; and

2. Reimburse Parent any out-of-pocket tuition costs for Student’s placement at Private School during the 23/24 SY; 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

October 16, 2023

/s: John Henry Olthoff/

John Henry Olthoff, Esq.

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

EXHIBIT DESCRIPTION DATE PAGES

1. Prior Written Notice 05/23/2023 (9 pages)

2. WITHDRAWN

3. Physical Therapy Evaluation 12/16/2022 (9 pages)

4. Individualized Education Program 12/07/2022 (22 pages)

5. WITHDRAWN

6. Physical Therapy Evaluation 07/07/2022 (4 pages)

7. Prior Written Notice 05/18/2022 (3 pages)

8. Individualized Education Program 04/08/2022 (19 pages)

9. WITHDRAWN

10. WITHDRAWN

11. Individualized Education Program 03/18/2021 (23 pages)

12. Letter from Dr. Abraham Green 05/06/2020 (1 page)

13. Individualized Education Program 05/01/2020 (23 pages)

14. Individualized Education Program 05/20/2019 (25 pages)

DOCUMENTATION ENTERED INTO THE RECORD BY PARENT

EXHIBIT DESCRIPTION DATE PAGES

A. Request for Impartial Hearing 07/03/2023 (6 pages)

B. Ten Day Notice 06/16/2023 (4 pages)

C. Pendency Form 07/24/2023 (1 page)

D. Private School Progress Report Unspecified (8 pages)

E. Private School Program Description Unspecified (8 pages)

F. Private School Daily Schedule Unspecified (2 pages)

G. Private School Enrollment Contract 09/13/2023 (1 page)

H. Private School Tuition Affidavit 09/13/2023 (1 page)

I. Private School Attendance Unspecified (2 pages)

J. Proof of Payment to Private School Unspecified (1 page)

K. Independent Neuropsychological Evaluation 10/09/2020 (10 pages)

L. Parent’s Social Security Benefit Verification Letter 09/12/2023 (2 pages)

M. Affidavit of Parent 09/17/2023 (5 pages)

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.