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NEW YORK CITY DEPARTMENT OF EDUCATION
IMPARTIAL HEARING OFFICE
STUDENT, by and through his/her PARENT(S), [1]
FINDINGS OF FACT AND DECISION
Petitioner(s),
- against -
Case No. 250798
THE NEW YORK CITY DEPARTMENT OF EDUCATION,
Record Close Date: 10/18/23
Respondent
HASHIM RAHMAN, Hearing Officer:
The Petitioner is the parent of a Student who requires special education services. (See Pet’r’s Ex. A at 1-2.) On July 5, 2023, the Petitioner filed a due process complaint (“Complaint”) against the New York City Department of Education (hereinafter “DOE” or Respondent). (See id. at 7.) In the Complaint, the Petitioner asserts that the DOE denied the Student a free and appropriate public education (“FAPE”) for the 2023-2024 by failing to develop an appropriate educational program, inter alia. (Id. at 2-7; see also, the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq.) The undersigned hearing officer was appointed for this matter on July 11, 2023.[2] A due process hearing was held on September 14, 2023. (See Hr’g Tr. 20-83.)
THE DUE PROCESS COMPLAINT
Based on the Complaint, the Student suffers from a brain injury that adversely impacts her educational skills and performance. (Pet’r’s Ex. A at 2.) The Student is “non-verbal and non-ambulatory, with highly intensive management needs requiring a high degree of individualized attention and intervention throughout the school day.” (Id. at 3.) On June 26, 2023, the DOE convened an educational meeting to develop an Individualized Education Program (“IEP”) for the 2023-2024 school year. (Id. at 4.) The Private School where the Student has been placed for several years provided recommendations for this meeting, and the DOE adopted most of the said recommendations. (Id.) However, the DOE’s plan did not recommend “music therapy or appropriate special transportation.” (Id.) The DOE program also did not recommend one-to-one nursing for the Student. (Id.) Furthermore, as alleged, the DOE did not provide the Petitioner with a copy of the IEP or a school location letter. (Id.)
As relief, the Petitioner seeks an order directing the DOE to pay full tuition for the Private School where the Student was placed for the 2023-2024 school year. (Id. at 7-8.) The Petitioner also seeks direct funding for related services and special transportation. (Id.)
THE DUE PROCESS HEARING
I. Facts and Assertions Presented
At the hearing, the Petitioner argued that the DOE denied the Student a FAPE by failing to offer her an adequate educational program and by failing to follow required procedures. (See Hr’g Tr. 28-29.) On account of this denial, the Petitioner seeks an order directing the DOE to fund the Private School, a Nursing Service, and a Transportation Service a total amount of $765,870. (Id. at 82-83.)
In support of her case-in-chief, the Petitioner presented nine documents and two witnesses. (See Hr’g Tr. 20-22.) The documents included the Complaint, a ten-day notice, a 2023 DOE IEP, a 2022 DOE IEP, a 2022 Private School IEP, a 2023 assistive technology evaluation report, an enrollment contract, a transportation agreement, and a nursing services agreement. (Id.; see also, Pet’r’s Ex’s A-I.) The 2022 Private School IEP is the only educational plan on record for the institution at where the Student was unilaterally placed. (See Pet’r’s Ex’s A-I.) The plan pertains to services beginning in April of 2022. (Pet’r’s Ex. B at 62-63.) The plan does not specifically address services for the 2023-2024 school year. (See id.)
The enrollment contract describes a “Base Tuition Fee” of $190,000 for the 2023-2024 school year. (Pet’r’s Ex. G at 6.) The contract states, “The Base Tuition includes the cost of an individual paraprofessional, and school nurse as well as the academic programming outlined in Section 3.” (Id.) The contract also describes a “Supplemental Tuition” fee of $116,544. (Id. at 7.) The contract states, “Supplemental Tuition includes the cost of the Student's related services programming such as physical therapy, occupational therapy, speech-language therapy, vision education services, assistive technology services, music therapy, hearing education services and parent counseling and training as outlined in Section 3.” (Id.)
The transportation agreement states that transportation services for the Student will be provided at an annual rate of $166,770. (Pet’r’s Ex. H at 2.) The agreement states that the fees shall be considered “PROVIDED SERVICES.” (Id.) The agreement also states fees are set “whether STUDENT used SERVICES or not unless PROVIDER was at fault for STUDENT not utilizing SERVICES.” (Id.)
The nursing services agreement states that nursing services will be provided at an annual rate of $292,556. (Pet’r’s Ex. I at 2.) The agreement states that the fees shall be considered “PROVIDED SERVICES.” (Id. at 3.) The agreement also states fees are set “whether STUDENT used SERVICES or not unless PROVIDER was at fault for STUDENT not utilizing SERVICES.” (Id.)
The Deputy Director of the Private School testified that most of the students in the program where the Student has been placed have a traumatic brain injury disability classification. (Hr’g Tr. 47.) He further explained that the Student attends a 6:1:1 class at the Private School; she has a one-to-one paraprofessional; she receives one-to-one nursing services; and she receives related services. (Id. at 53-55.) He said that the Student receives occupational therapy five times per week, physical therapy five times per week, hearing education two times per week, assistive technology one time per week, and music therapy four times per week. (Id. at 54.) He said that the aforementioned services are delivered in 60-minute sessions. (Id.)
The Deputy Director also stated that the Student “has made significant progress in skill areas across academics and related service domains in her educational program at [the Private School].” (Id. at 55.) He explained that his opinion is based on observation, teachers’ reports, and progress reports. (Id.) He did not identify any specific reports in evidence. (See id; see also, Pet’r’s Ex’s A-I.)
The Deputy Director also said that he disagreed with many of the recommendations in the Student’s 2023 DOE IEP. (Hr’g Tr. 56.) More specifically, he said that he disagreed with the lack of a one-to-one nurse in the DOE plan. (Id.) When asked whether he recalled whether the DOE recommended an individual nurse for the 2023-2024 school year, he said, “I do not know.” (Id. at 57.)
The Petitioner testified that the Student had a brain injury; she has cerebral palsy; she has a seizure disorder; and redacted. (Id. at 64.) She stated that she disagreed with the DOE educational program in part because music therapy was not recommended. (Id. at 68.) She also said that a school was never recommended. (Id. at 69.) She further testified that she would not be able to pay for the costs of the Student’s private placement if she did not receive funding through the hearing process. (Id. at 73.) When she was asked to specify the amount of the costs at issue, she said, “I don’t know.” (Id.)
ANALYSIS
I. General Legal Framework
Under the IDEA, an educational agency must offer a free and appropriate public education (“FAPE”) to each student with a disability residing in the state. 20 U.S.C. § 1412(a)(1)(A). The IDEA defines FAPE as “special education and related services that have been provided at public expense, under public supervision and direction, and without charge . . .” that meet state standards and are provided in conformity with IEP requirements. 20 U.S.C. § 1401(9). Congress enacted the IDEA "to ensure that all children with disabilities have available to them a free appropriate public education" and "to ensure that the rights of children with disabilities and parents of such children are protected." 20 U.S.C. § 1400(d)(1)(A), (B). A FAPE should emphasize “special education and related services designed to meet [a disabled child's] unique needs and prepare [the child] for further education, employment, and independent living." Id. § 1400(d)(1)(A).
When addressing whether a FAPE was provided, two factors should be considered: 1) whether the IEP was developed according to the IDEA’s procedural requirements, and 2) whether the educational plan set forth in the IEP was reasonably calculated to confer a substantive educational benefit on the student. See Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998) (citing Bd. of Educ. v. Rowley, 458 U.S. 176, 206-207 (1982)). Under the IDEA, if procedural violations are alleged, a hearing officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(ii). The school district bears the burden of proving that it provided a FAPE to the Student. See EDUC. L. § 4404(1)(c).
If a FAPE has not been provided to a child with a disability, a parent may unilaterally place that child in a private school and seek an award for reimbursement from the school district. 20 U.S.C. § 1412(a)(10)(C)(ii); see also, Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 (1985) ("Burlington"); Florence Cnty. Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7, 12 (1993) ("Carter"). The determination of whether a parent is entitled to reimbursement is based on the three-prong Burlington/Carter test, "which looks to (1) whether the school district's proposed plan will provide the child with a free appropriate public education; (2) whether the parents' private placement is appropriate to the child's needs; and (3) a consideration of the equities." C.F. ex rel. R.F. v. N.Y.C. Dep't of Educ., 746 F.3d 68, 73 (2d Cir. 2014). The Burlington-Carter test has also been used for cases pertaining to third-party educational service providers. See In re: Student with a Disability, Appeal No. 20-140, 120 LRP 31098 (N.Y. SRO Sept. 23, 2020); In re: Student with a Disability, Appeal No. 20-099, 120 LRP 31070 (N.Y. SRO Sept. 21, 2020); In re: Student with a Disability, Appeal No. 20-094, 120 LRP 31066 (N.Y. SRO Sept. 9, 2020). This is relevant because for the case at bar, the Petitioner seeks funding not only for tuition but also for services.
II. FAPE
For the first prong of the Burlington/Carter test, the DOE has the burden to prove that it provided the Student with a FAPE. See EDUC. L. § 4404(1)(c). In the present case, I find that the DOE has not met this burden as it presented no witnesses and no documents. Accordingly, I find that the Student was not provided a FAPE.
III. Appropriateness of Private School and Private Services
For the second prong of the Burlington/Carter test, the Petitioner bears the burden of proving whether the unilateral placement at the Private School was appropriate. See EDUC. L. § 4404(1)(c). The Petitioner also bears the burden of demonstrating whether privately-obtained services were appropriate. See In re: Student with a Disability, Appeal No. 20-140, 120 LRP 31098 (N.Y. SRO Sept. 23, 2020); In re: Student with a Disability, Appeal No. 20-099, 120 LRP 31070 (N.Y. SRO Sept. 21, 2020); In re: Student with a Disability, Appeal No. 20-094, 120 LRP 31066 (N.Y. SRO Sept. 9, 2020). The appropriateness of placement hinges on whether it is "reasonably calculated to enable the child to receive educational benefits." Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006), (quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982)). “No one factor is necessarily dispositive in determining whether parents' unilateral placement” is reasonably calculated to confer educational benefits to the child. Id. at 364-365. To qualify for reimbursement a parent “need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child . . .” Id., (quoting Rowley, 458 U.S. at 188-89).
a. The Private School Program
Here, I find that the Petitioner has not demonstrated that the Student was placed in an adequately-designed program that was tailored to her needs. This is in part because the Petitioner did not present any Private School educational plan for the 2023-2024 school year. (See Pet’r’s Ex’s A-I.) She also did not present class schedules; and no progress reports were provided for the current year or even the prior school year. (See id.) The Petitioner did not present anything more than the seemingly rote and cursory testimony of the Deputy Director. (See Hr’g Tr. 40-60.) In fact, the Deputy Director did not account for much more than the general contours of a program, the class ratio, and the types of related services. (See id.) Thus I find that the Petitioner has not met her burden with respect to the Private School program at where the Student was unilaterally placed.
b. Related Services
I also find that the Petitioner has not demonstrated that the Student is receiving private related services that are adequately-designed and uniquely tailored to her needs. The Petitioner presented absolutely no testimony from related service providers that are currently serving the Student. (See Hr’g Tr. 21.) Thus there was no account of their qualifications, their methodologies, their goals for the Student, or anything else other than a contract for $116,544. The Deputy Director did account for the types of services and the frequency of services, but he did not state much more than that. (See id. at 40-60.) The Petitioner also failed to provide any testimony or documentary evidence describing the services administered by the Nursing Service provider. (See id. at 20-22.) Thus there was no description of qualifications, capabilities, or anything else other than a contract for $292,556. Given the scant level of proof, I find that the Petitioner has not met her burden with respect to the unilaterally-obtained related services.
c. Transportation Services
I further find that the Petitioner has not demonstrated that the Student is receiving private transportation services that are adequately-designed and uniquely tailored to her needs. The Petitioner’s Complaint states that the Student has “intensive needs” with respect to transportation. (Pet’r’s Ex. A at 6.) Nonetheless, the Petitioner presented absolutely no testimony or other evidence describing the transportation services obtained for the 2023-2024 school year. (Hr’g Tr. 20-22.) Thus there was no description of qualifications, capabilities, or anything else other than a contract for $166,770. Given this absence of proof, I find that the Petitioner has not met her burden with respect to the unilaterally-obtained transportation services.
CONCLUSION AND ORDER
I find that DOE failed to provide the Student with a FAPE for the 2023-2024 school year. However, I find that the Petitioner has not demonstrated that the private school placement and the unilaterally-obtained services are uniquely tailored to the Student’s needs. As such, all relief requested is denied.
Dated: 10/20/23
SO ORDERED
/s/ ___
HASHIM RAHMAN,
HEARING OFFICER
Sent via Email to All Parties
APPENDIX A – EXHIBITS BY PETITIONER(S)
PARENT EXHIBIT DATE DESCRIPTION NUMBER OF PAGES
A 07/05/2023 Due Process Complaint IH # 250798 9
B 04/05/2022 Private School IEP 2022-23 School Year 64
C 06/20/2023 Ten Day Notice 2023-24 SY 2
D 07/01/2023 DOE IEP 2023-24 SY 36
E 04/11/2022 DOE IEP 2022-23 SY 74
F 01/12/2023 Assistive Technology Evaluation Report 15
G 07/05/2023 Enrollment Contract 2023-24 School Year 6
H 07/01/2023 Transportation Agreement 2023-24 School Year 6
I 07/05/2023 Nursing Agreement 2023-24 School Year 8
APPENDIX B – TERMS AND REFERENCES
[INTENTIONALLY OMITTED]
Footnotes
[1] Personally identifiable information has been removed from this decision but is shown in the appendix.
[2] A Notice of Appointment that was emailed to the Impartial Hearing Officer by the New York City Impartial Hearing Office.