NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT AND DECISION
Case Number: 250092
Student’s Name: [REDACTED]
School District: [REDACTED]
Impartial Hearing Officer: Hannah Schwager, Esq.
Date of Filing: July 3, 2023
Hearing Requested by: Parent
Date of Hearing: September 13, 2023
Record Close Date: September 27, 2023
Date of Decision: September 27, 2023
Time Sensitive: YES
Names and Titles of Persons Who Appeared September 14, 2023
For the Student
[REDACTED] Attorney for Parent
[REDACTED], Director of Education, Private School
[REDACTED], Parent
For the New York City Department of Education
[REDACTED], Consultant Impartial Hearing Representative
BACKGROUND
Parent, through counsel, filed a Due Process Complaint (“DPC”) on July 3, 2023. In the request, the Parent alleges that the Department of Education (“DOE”) failed to provide the student with a free appropriate public education (“FAPE”) for the 2023-2024 school year.[1]
By way of relief, Parent seeks an award of tuition reimbursement for Student’s attendance 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.[2] Parent alleges that the Private School is appropriate to meet the Student’s needs, and that the equities support Parent’s claim for tuition reimbursement for the school years at issue.[3]
Considering the record, and as more fully discussed below, I find that a) DOE failed to meet its burden and show that it offered Student FAPE for the 2023-2024 school year, b) Private School offers Student with specially designed instruction sufficient to meet Student’s needs, and c) the equities support Parent’s requested relief.
PROCEDURAL HISTORY
I was appointed on Jul 7, 2023. I wrote to the parties to schedule a virtual pre-hearing conference, which was held on August 7, 2023. An Amended DPC was filed by Parent on July 18, 2023.[4] However, since the only change was to the Student/Parent address, I accepted the new DPC as a corrected DPC with no objection from the Parties and no change to the compliance deadline.[5] On August 23, 2023, the parties appeared for a virtual status conference. At this conference, I scheduled the matter for a due process hearing.
On September 14, 2023, both parties appeared for the virtual due process hearing. At the hearing, DOE did not seek to introduce witness testimony, nor any other evidence. DOE stated that it would not be presenting a case to show that a FAPE was provided to Student for the 2023-2024 school year.[6] Parent submitted 16 exhibits into the record with no objection from DOE.[7] Included in Parent’s evidence were two affidavits, one from the Director of Education for the Private School, and one from Parent.[8] DOE indicated it had no intention to cross-examine the affiants. Both affidavits were accepted in the record. Parent rested and DOE advised that it had no further statement to make or testimony or documents to offer. Both Parent and DOE waived oral closing statements.[9]
FINDINGS OF FACT AND DECISION
After a full review of the record generated at hearing, I make the following findings of fact and determinations.
Student is [REDACTED]-years old and has Autism.[10] A Psychiatric Report created in April 2021 diagnosed Student with autism spectrum disorder, impulse control disorder and anxiety disorder.[11] Student presents with academic challenges, as well as social-emotional regulation and behavioral challenges, which make it difficult for the Student to function in a general education classroom.[12] Student displays concerning behavior including dangerous elopements and self-harm episodes.[13]
The Psychiatric Report recommended that Student be placed in a residential school.[14] A Committee on Special Education (“CSE”) meeting was held in June 2021 at which the CSE also recommended Student for a residential program.[15] Parent testified via affidavit about attempts to place the Student in an approved residential school, but no placement for the Student could be found in such a school, even out of state.[16] Student began attending the Private School in April 2022 as a residential student.[17] Parent testified that the CSE has not held a meeting since June 2021, and there have been no additional attempts by the CSE to secure Student a state-approved, non-public residential placement.[18]
Pendency
Parent’s DPC requested pendency based upon an Impartial Hearing Officer’s Findings of Fact and Decision (“FOFD”) dated October 23, 2022.[19] A copy of the FOFD was entered into the record as Parent Exhibit D. That FOFD ordered that the DOE shall fund/reimburse Parent for tuition at the Private School for the 2021-2022 school year, within thirty days of invoice and/or proof of payment and attendance records.[20] At hearing, DOE did not object to Parent’s pendency request.[21]
The IDEA and the New York State Education Law require that a student remain in his or her then current educational placement, unless the student’s parents and the board of education otherwise agree, during the pendency of any proceedings relating to the identification, evaluation, or placement of the student.[22] Pendency has the effect of an automatic injunction, and the party requesting it need not meet the requirements for injunctive relief such as irreparable harm, likelihood of success on the merits, and a balancing of the hardships.[23]
DOE was provided the opportunity to state its position regarding Parent’s request for pendency on the record and stated that DOE did not object to the request. Accordingly, I find that Student is entitled to pendency.
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.[24]
Credibility
In admitting the documents, I found them relevant, detailed, and consistent with the allegations in the DPC, as well representative of the facts for which they were offered. I therefore credit all the exhibits. As for the witnesses, I found Education Director’s testimony and the testimony of Parent to be relevant and reliable, and I have no reason to doubt the veracity of the testimonies provided. The weight I afford the exhibits and testimony is reflected in the analysis.
Prong I
The IDEA provides that children with disabilities are entitled to a Free Appropriate Public Education ("FAPE") (20 U.S.C. § 1400 (d)(1)(A). 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). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits.[25] In order 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.”[26]
As to Prong I of the Burlington/Carter standard, DOE failed to meet its burden at hearing. The DOE Representative indicated on the record that DOE would not be putting on a Prong I case and presented no witnesses testimony or documentary evidence establishing that a FAPE had been provided.[27] Therefore, I find that DOE failed to offer the Student FAPE for the 2023-2024 school year.
Prong II
A private school placement must be "proper under the Act."[28] This means that the private school must offer an educational program which met the student's special education needs.[29] Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate."[30] Subject to certain limited exceptions, the same considerations and criteria that are relevant to determining whether DOE’s placement is appropriate should also be considered in determining the appropriateness of the parent’s placement.[31]
Parents need not show that the placement provides every special service necessary to maximize the student's potential.[32] When determining whether a unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether the placement is "reasonably calculated to enable the child to receive educational benefits."[33] A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student.[34]
The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement. 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.[35]
The Private School
The Education Director of the Private School testified credibly via affidavit that the Private School is a residential school for students on the autism spectrum “who face complex challenges and who need significant support.”[36] The Private School provides classrooms “equipped with state-of-the-art technology,” and the curriculum is centered around “evidence-based clinical and academic approaches to Autism education.”[37] The Student’s daily schedule for summer 2023-2024 was provided as Parent Exhibit J and showed that the Student is provided with functional academics, as well as enrichment and life skills.[38] The Private School has a program designed for high-school aged students who require a high level of support, and which focuses on activities of daily living and functional skills.[39] The Education Director testified in her affidavit the following:
Our teachers and clinicians employ Developmental, Individual difference, Relationship-based principles (DIR), practices of Universal Design for Transition (UDT), and the Self-Determined Learning Model of Instruction (SDLMI) as the foundation for all our individualized programs. Our unique curriculum accommodates sensory, cognitive, and behavioral characteristics, with emphasis on building skills for life-long success, including executive functioning, self-regulation of behavior, information processing, and social interaction.[40]
Student is enrolled in the Private School’s Skills and Achievement program.[41] Student receives two-on-one and/or one-on-one (“1:1”) support services throughout the day.[42] Student is in a classroom with six other students, one classroom teacher, one educational assistant and a 1:1 paraprofessional.[43] The supervising classroom teacher is a certified special education teacher and the Private School ensures that staff are trained in intervening “in situations before dysregulated students become physically aggressive.”[44] Student also receives speech-language therapy (“SLT”), occupational therapy (“OT”) and Counseling at the Private School.[45]
Student’s behavioral needs were assessed by a behavioral analyst upon Student’s enrollment at the Private School in early 2922, and so Student’s program and interventions were designed specifically to meet Student’s academic and social needs.[46] Parent’s Exhibit E is an Individualized Transdisciplinary Education Plan (“ITEP”) which was developed for Student by the Private School in June 2022.[47] The record shows that the Private School monitors Student’s progress closely, publishes quarterly progress reports, and allows Parents to receive daily updates on Student.[48]
Parent submitted evidence and testimony showing that Student has made progress since enrolling at the Private School in April 2022. The Education Director testified via affidavit that Student is “making steady progress with all of [the Student’s] individual goals in all content areas” with the support of the Student’s teacher and service team.[49] Parent testified via affidavit that Student has shown progress and that Student’s disruptive behavioral outbursts have diminished, both at the Private School and at home.[50] Parent testified that Student has also made progress through the use of an assistive technology language device, facilitated by the staff at the Private School, which has allowed Student to communicate more clearly and to engage more in Student’s math and reading classes.[51] Parent testified that Student has progressed academically in the areas of math, reading, and art, and that the Private School’s staff have been coordinating with Parent on how best to address Student’s academic and behavioral challenges.[52]
In reviewing the record, the weight of the evidence establishes that 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."[53] I note that the DOE offered no arguments concerning the appropriateness of Parent’s unilateral placement, nor challenging the equities in this action. I further note that DOE did not cross-examine any of Parent’s witnesses, nor objected to any document accepted into the record. Under these circumstances, I find that Parent’s witnesses are credible.
I find that Parent has met their burden in proving that the private program offered an educational program which met Student’s need under Prong II of the Burlington/Carter standard.
Equities
Even if a parent establishes a right to reimbursement under the IDEA, "courts retain discretion to reduce the amount of a reimbursement award if the equities so warrant."[54] In making that equitable determination, a hearing officer may consider many factors, including, inter alia, 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.[55]
Here, Parent provided the necessary Ten-Days’ Notice of their concerns with DOE’s offer of FAPE for the Student for the 2023-2024 school year. Therein, Parent detailed specific concerns and gave the DOE notice of their intention to unilaterally place the Student at the Private School.[56] No evidence was submitted at hearing describing DOE’s response to the Ten-Day Letter. Furthermore, Parent testified that attempts were made to find a CBST approved placement for the Student both inside and outside of the state, with no success.[57]
By way of relief, Parent seeks reimbursement for the Private School tuition costs and to have the balance of unpaid tuition sent directly to the Private School. Direct tuition funding is relief encompassed by the equitable remedial powers inherent in IDEA.[58] Having reviewed the Enrollment Contract, I find that tuition for the 2023-2024 school year is $316,400.00[59], and Parent’s adjusted gross income is $384,487.00.[60] The Enrollment Contract requires Parent to “assume responsibility for the enrollment of the Student at the School” and the Private School may “demand the amounts due under this Enrollment Contract be paid from a personal account owned by [the Parent].”[61] I find that the unilateral tuition costs would represent almost the entirety of the Parent’s annual income. Equity demands that the DOE fund Student’s Private School tuition in this instance.
I find no issue with the reasonableness of the costs, including tuition, associated with the Private School. It is established that Student is enrolled to attend the Private School during the years at issue.[62] Moreover, I find that the weight of the evidence establishes that Parent cooperated with the DOE and its CBST’s efforts to secure an approved residential placement for Student for the 2023-2024 school year.[63] Overall and after considering the record at hearing, I find that the equities support Parent’s claim for tuition reimbursement and direct funding.
ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:
1) The New York City Department of Education failed to provide Student with a FAPE for the 2023-2024 school year.
2) Parent’s claim for tuition reimbursement for Student’s unilateral placement, as well as for direct tuition funding, at the Private School is GRANTED for the 2023-2024 school year as follows:
a. The District shall reimburse Parent in the amount of $1,083.34 for payments already made towards tuition for the 2023-2024 school year;
b. The District shall directly fund the balance of Student’s tuition at the Private School in an amount not to exceed $316,400.00, less that amount reimbursed directly to Parent for payments already made (see foregoing subparagraph) for the 2023-2024 school year.
3) The District shall reimburse Parent for the cost of tuition at the Private School as described above within thirty (30) days of submission of proof of payment; and
4) The District shall pay to the Private School the remainder of any tuition funds, within thirty (30) days of submission of a signed, notarized bill encompassing tuition costs owed by the Parent to the Private School for the Student’s attendance at the Private School for the 2023-2024 school year.
Dated: September 27, 2023
_____________________
Hannah Schwager
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.
APPENDIX A
DISTRICT EVIDENCE
None
PARENT EVIDENCE
| Exhibit | Title | Date | Pages |
|---|---|---|---|
| A | Impartial Hearing Request | 7/3/2023 | 3 |
| B | Amended Impartial Hearing Request | 7/3/2023 | 3 |
| C | Ten Day Notice | 6/15/2023 | 1 |
| D | Findings of Fact and Decision | 10/23/2022 | 19 |
| E | Individualized Transdisciplinary Education Plan | 6/6/2022 | 55 |
| F | Individual Support Plan | 3/21/2023 | 2 |
| G | Psychiatric Report | 4/21/2021 | 4 |
| H | Psychological Evaluation | 4/23/2021 | 6 |
| I | Admission Treatment Plan | Undated | 1 |
| J | Daily Schedule | Summer 2023-2024 | 1 |
| K | Enrollment Contract | 2023-2024 | 7 |
| L | Affidavit of Payment | 8/31/2023 | 1 |
| M | Proof of Payment | 8/2/2023; 8/8/2023 | 2 |
| N | Tax Return | 2021 | 2 |
| O | Affidavit of Testimony of [REDACTED] | 9/7/2023 | 16 |
| P | Affidavit of Testimony of [REDACTED] | 9/7/2023 | 7 |
IHO EVIDENCE
| Exhibit | Title | Date | Pages |
|---|---|---|---|
| I | Corrected DPC Email Chain | 7/20/2023 | 10 |
Footnotes
[1] Parent Exhibit (P.Ex) A
[2] Id.
[3] Id.
[4] P. Ex. B
[5] IHO Ex. I
[6] Transcript (Tr.) 32
[7] P. Ex. A-P. Appendix A includes a detailed list of the exhibits entered into the record at hearing.
[8] P. Ex. O and P. Ex. P. Exhibit O that was provided in the Parent’s disclosures prior to the hearing date was unsigned and unsworn. However, at hearing, the Parent provided the signature page reflecting the affiant’s notarized signature. This page was incorporated into Exhibit O with no objection from DOE (See Tr. 28).
[9] Tr. 33
[10] P. Ex. E-1
[11] P. Ex. G -1
[12] P. Ex. O ¶ 29
[13] P. Ex. G-1; P. Ex. O ¶29
[14] P. Ex. G-4
[15] P. Ex. P ¶10
[16] P. Ex. P ¶11
[17] P. Ex. O ¶21; P. Ex. P ¶14
[18] P. Ex. P ¶16
[19] P. Ex. A-3
[20] P. Ex. D-12
[21] Tr. 24
[22] 20 U.S.C. § 14159(j); Educ. Law §§ 4404(4), 4410(7)(c); 34 CFR 300.518(a); 8 NYCRR 200.5(m); see, Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *20 (E.D.N.Y. Oct. 30, 2008); Bd. of Educ. v. O'Shea, 353 F. Supp. 2d 449, 455-56 (S.D.N.Y. Jan. 18, 2005); Application of a Student with a Disability, Appeal No. 14-024; Application of the Dep't of Educ., Appeal No. 08-061.
[23] Zvi D. v. Ambach, 694 F.2d 904, 906 (2d Cir. 1982); see Wagner v. Bd. of Educ., 335 F.3d 297, 301 (4th Cir. 2003); Drinker v. Colonial Sch. Dist., 78 F.3d 859, 864 (3d Cir. 1996).
[24] NYS Educ. Law § 4404(1)(c).
[25] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
[26] Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017).
[27] Tr. 32.
[28] Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12, 15 (1993); Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 370 (1985).
[29] See Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112, 115 (2d Cir. 2007); Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998).
[30] Gagliardo, 489 F.3d at 112.
[31] Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006).
[32] Frank G., 459 F.3d at 364-65.
[33] Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115.
[34] 20 U.S.C. § 1401(29); Educ. Law § 4401(1); 34 CFR 300.39(a)(1); 8 NYCRR 200.1(ww); Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 (2d Cir. 2014).
[35] Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65.
[36] P. Ex. O ¶6
[37] P. Ex. O ¶7
[38] P. Ex. J
[39] P. Ex. O ¶11
[40] P. Ex. O ¶11
[41] P. Ex. O ¶ 21
[42] P. Ex. O ¶ 32
[43] P. Ex. O ¶ 32
[44] P. Ex. O ¶ 34
[45] P. Ex. O ¶43
[46] P. Ex. O ¶35
[47] P. Ex. E
[48] P. Ex. O ¶46
[49] P. Ex. O ¶ 45
[50] P. Ex. P ¶24
[51] P. Ex. P ¶25
[52] P. Ex. P ¶25
[53] Frank G., 459 F.3d at 364.
[54] Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246-47, 129 S. Ct. 2484, 174 L. Ed. 2d 168 (2009).
[55] E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014).
[56] P. Ex. C
[57] P. Ex. P ¶¶ 10, 11, 12
[58] 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.”).
[59] P. Ex. K-2
[60] P. Ex. N-1
[61] P. Ex. K-1
[62] P. Ex. K
[63] P. Ex. C; P. Ex. P