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FINDINGS OF FACT AND DECISION
Case Number: 251665
Student’s Name: [REDACTED]
School District: N.Y.C. Dept. of Ed., District # [REDACTED]
Impartial Hearing Officer: Roberta Wolf
Date of Filing: 06/22/2023
Hearing Requested by: Parent
Date of Hearing: 10/11/2023
Record Close Date: 11/01/2023
Date of Decision: 11/01/2023
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 11, 2023:
For the Department of Education (DOE):
[REDACTED], Representative
For the Student:
[REDACTED], Representative
[REDACTED], Parent
BACKGROUND
On June 22, 2023, the Parent, by and through her attorney’s law firm, filed a due process complaint (DPC) against DOE on behalf of the Student, under Case No. 251665, pursuant to the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. § 1415(f)), Section 4404(1) of the New York State Education Law (Education Law), Section 504 of the Rehabilitation Act of 1973, and Section 1983 of the Civil Rights Act. [1]
In the DPC, the Parent asserts that DOE failed to provide the Student with a free appropriate public education (FAPE) when, inter alia, its Committee on Special Education (CSE) failed to perform required triennial evaluations before creating substantively inappropriate and procedurally non-compliant Individualized Education Programs (IEPs) for the 2021-2022 and 2022-2023 school years. The Parent thereafter continued the unilateral placement of the Student at the Private School and now seeks direct tuition funding, independent educational evaluations (IEEs), and a reconvene of the CSE to create a new IEP that considers the results of those IEEs.[2]
I was appointed impartial hearing officer (IHO) on July 14, 2023; conducted prehearing conferences on July 25, 2023, and August 22, 2023; and adjudicated a due process hearing on October 11, 2023. DOE did not hold a resolution meeting or provide a due process response.[3] At the hearing, DOE presented no evidence, waived cross-examination of the Parent’s affiants, and did not defend that it provided the Student with a FAPE. However, DOE challenged the appropriateness of the Private School, arguing that it did not provide the least restrictive environment (LRE) or offer related services such as occupational and speech-language therapy (OT, SLT).
The Parent’s case consisted of affidavit testimony and documentary evidence. All of the Parent’s exhibits were admitted into the record, a list of which is appended to this Order.
FINDINGS OF FACT
The Student is now [REDACTED] years and his eligibility for special education supports and services is not in dispute. DOE classified the Student with “Emotional Disturbance,”[4] and his medical diagnoses include autism spectrum disorder, mild to moderate intellectual disability, complex post-traumatic stress disorder, intermittent explosive disorder, attention deficit hyperactivity disorder, gender dysphoria, pervasive developmental disorder, major depressive disorder, and gender identity disorder.[5] He struggles with information retention and often cannot recall facts conveyed to him mere minutes after learning them.[6] His instruction requires constant review, repetition, and oversight to ensure that he understands the information taught to him.[7] In 2017, the Student was admitted to a psychiatric facility and he has since been admitted multiple times for rage and suicidal ideations.[8] He sees a psychiatrist regularly and takes several medications for his psychiatric care.[9] He cannot withstand exposure to crowds because it triggers his anxiety and suicidal ideations. [10]
The Parent first enrolled the Student at the Private School in 2018[11] and continued his education there until 2021.[12] On April 26, 2021, the CSE convened to create an IEP for the Student for the 2021-2022 school year[13] and the Parent and the Student’s teacher from the Private School attended that meeting.[14] The IEP mandated a 12:1 Special Class with counseling, OT (one 30-minute weekly session), and SLT (three, 30-minute weekly sessions) for the 12-month, extended school year.[15] In creating the IEP, the CSE relied on a social history update dated April 14, 2021, vocational assessments dated April 22, 2021, a sight word assessment dated April 27, 2021, progress reports from the Private School dated March 26, 2021, a psychological update from June 1, 2020, a neuropsychological evaluation from August 2016, and input from the Parent and the Student’s teacher.[16]
The Parent conveyed her satisfaction with the Student’s progress at the Private School, in part because he felt safe there and did not experience bullying as he had when previously enrolled in public school.[17] The CSE concluded that the Student’s needs would be best addressed at an approved non-public school.[18] The CSE met with the Parent again on July 9, 2021, when it found a placement for the Student at the approved Non-Public School (NPS) [19] and a third time on September 17, 2021, when it modified the Student’s IEP to a 8:1+1 Special Class with one less SLT session. [20]
The Parent accepted the program and placement; however, the Student did not progress and instead, “began to languish there.”[21] On January 12, 2022, the Parent notified DOE that unless it provided the Student with an appropriate program, she intended to continue the Student’s unilateral placement at the Private School and seek public funding for tuition.[22] DOE did not respond to the notice.[23]
For the 2022-2023 school year, DOE offered the Student the same program as in the September 17, 2021, IEP and the Parent again notified DOE that she rejected the program and intended to seek public funding for the Student’s continued unilateral placement at the Private School.[24] DOE did not respond to the notice.
The Private School provides full-time instruction for students grades 6-12 with special education needs, including those with emotional disabilities such as the Student, and provides individualized, one-to-one instruction at all times.[25] To create and implement an educational program for the Student: the Private School formally assessed his reading and math skills and created a comprehensive “Student Profile” overview[26]; the Director of the Private School met with the Student’s teachers to review his IEP and create quarterly goals (academic, social, and emotional) as part of an overall educational plan;[27] the Student completed a quarterly self-assessment; and the Private School tracked Student’s progress daily to make modifications to the curriculum as appropriate.[28] The Private School adheres to State standards for academic programming and curriculum[29] and all teachers hold at least a Bachelor’s Degree in their respective fields of instruction.[30] To address the Student’s delays with data recall, his teachers focused on chunking information, scaffolding lessons, providing guided notes, using analogies and real-world examples of the material, and overseeing the Student’s completion of homework.[31] The Private School also provided the Student with one-to-one tutoring and mentoring, positive reinforcement, and a Community Minds course that focuses on his social and emotional deficits and executive functioning delays.[32] The Student progressed in all areas of study as shown by his transcript and teacher progress reports. [33]
ANALYSIS
The IDEA and the New York Education Law require a school district to offer a FAPE to each child with an eligible disability residing in its district who requires special education programs or services.[34] A FAPE is offered to a student when (a) the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits; and (b) DOE complies with the procedural requirements set forth in the IDEA.[35] For a procedural violation, an impartial 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 parent’s 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.[36] In general, an IHO’s decision must be made on substantive grounds as to whether the student received a FAPE.[37] DOE may be required to pay for educational services obtained for a student by his parent if a preponderance of the evidence shows: (a) the services offered by DOE were inadequate or inappropriate (e.g., the denial of a FAPE); (b) the services selected by the parent were appropriate; and (c) equitable considerations support the parent’s claim. [38]
Prong 1 – FAPE Denied to the Student for the 2021-2022 and 2022-2023 School Years
A school district offers a student a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.”[39] An IEP must include a statement of the student’s present levels of academic achievement and functional performance; annual goals designed to meet the student’s needs resulting from his disability and that enable him to make progress in the general education curriculum; and provide appropriate special education and services.[40] “A reviewing court may fairly expect [DOE] to be able 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.” [41]
In this case, as to the Burlington/Carter standard (Prong 1), DOE presented no evidence and stated on the record that it would not defend that it provided the Student with a FAPE. Therefore, I am constrained to find that DOE failed to offer the Student a FAPE for the school years at issue. Moreover, a review of the record herein (i.e., no witness testimony to explain the mandated services in either the September 17, 2021, IEP or the 2022-2023 IEP, or a copy of the latter IEP) supports the conclusion that DOE failed to offer the Student an educational program reasonably calculated to provide a FAPE for the 12-month, 2021-2022 and 2022-2023 school years. [42]
Prong 2 – Appropriateness of Unilateral Placement Established
School districts bear the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent seeking tuition funding or reimbursement for a unilateral placement in a private school setting bears the burden of persuasion and burden of production on the appropriateness of such placement. A “private placement is only appropriate if it provides ‘education instruction specifically designed to meet the unique needs of a child.’” [43]
The Private School provides full-time special education for children with emotional disturbances and other learning disabilities as the Student exhibits, taught in a one-to-one setting by qualified instructors. The Private School tailored the Student’s educational instruction to meet his specific needs as shown by its close supervision and substantial focus on his academic delays (data retention) and social and emotional deficits (tutoring, mentoring, positive reinforcement). The Student progressed in all areas of study as shown by his transcript, progress reports, and the affidavits of the Parent and the Director of the Private School.
Although DOE points out that the Private School did not provide the Student with three total weekly sessions of OT and SLT (as mandated in his IEPs), a parent need not show that the private placement, “furnishes every special service necessary to maximize [the] child’s potential.”[44] DOE also argues that the Private School does not provide an LRE; however, courts have broadly held that parents need not meet LRE standards.[45] When a student is denied a FAPE, a parent may be forced to place him in a private school that may be more restrictive than the public school from which he was removed. Requiring the parent to secure a private school that is as non-restrictive as the FAPE-denying public school undermines her right to unilaterally withdraw him from that public school in the first instance.[46] Although the restrictiveness of a program can be considered by an IHO in determining its appropriateness, it is not determinative.[47]
I find the Parent’s evidence to be comprehensive, consistent, and credible. I further find that the Parent established that the placement of the Student in the Private School provides educational instruction specially designed to meet his unique needs, supported by such services as are necessary to permit him to benefit from that instruction.
Prong 3 – Equitable Considerations Favor the Parent
Although the IHO may deny a parent tuition funding for: (a) unreasonably rejecting DOE’s proposed changes to the IEP, or otherwise behaving unreasonably; (b) failing to make the student available for an evaluation; or (c) failing to timely notify DOE of her intent to reject the proposed IEP and enroll the student in a private school at public expense,[48] no facts support such a finding in this case. Here, DOE made no claim and provided no evidence that the Parent behaved unreasonably or failed to make the Student available for an evaluation, nor did DOE object to the Parent’s proffer of two “Ten Day Notices of Intent” to continue the unilateral placement of the Student in the Private School and seek tuition funding.
The Parent’s enrollment contracts shows that the Private School charged $31,713.00 for the Student’s attendance during a portion of the 12-month, 2021-2022 school year (March 21, 2022, to June 30, 2022), and $103,524.70 for the 2022-2023 school year (July 5, 2022, to June 27, 2023.[49] I find that the equities favor the Parent and award funding in full.
IEEs (Neuropsychological, OT, SLT, and Physical Therapy) Granted
The Parent challenged the comprehensiveness of the District’s evaluations in the DPC because DOE had not conducted a statutorily mandated triennial evaluation before creating the IEPs at issue here.[50] In D.S. v. Trumbull Bd. of Educ.,[51] the Court highlighted the district’s responsibility to conduct sufficiently comprehensive evaluations of a student using a variety of evaluative and assessment tools. It also stated that if the district failed to conduct sufficiently comprehensive evaluations of the student, including failing to conduct assessments, the Parent then had a right to obtain an independent evaluation at public expense.
At the hearing, DOE did not dispute the Parent’s claim or contest her request for the IEEs; therefore, the Parent’s request for IEEs is granted.
Other than the relief set out in my Order below, I find the Parties’ remaining contentions to be unnecessary to this decision, without merit, beyond my jurisdiction, or without sufficient basis in the record for a finding. Any relief not specifically discussed in this decision is denied, and all of the Parent’s remaining claims not discussed herein are dismissed with prejudice.
ORDER
Based upon the above Findings of Fact, it is hereby:
1. ORDERED that DOE shall fund the tuition owing directly to the Private School for the portion of the Student’s placement during the 12-month 2021-2022 school year (from March 21, 2022, through June 30, 2022), in a sum not to exceed $31,713.00 (Thirty-One Thousand, Seven Hundred Thirteen Dollars).
2. FURTHER ORDERED that DOE shall fund the tuition owing directly to the Private School for the Student’s placement during the 12-month 2022-2023 school year in a sum not to exceed $103,524.70 (One Hundred-Three Thousand, Five Hundred Twenty-Four Dollars and Seventy Cents).
3. FURTHER ORDERED that DOE shall fund the following comprehensive, independent educational evaluations of the Student to be performed by the provider(s) of the Parent’s choosing:
a. An occupational therapy assessment at a cost not to exceed $4,000;
b. A speech-language therapy assessment at a cost not to exceed $4,000;
c. A physical therapy assessment at a cost not to exceed $4,000;
d. A neuropsychological evaluation at a cost not to exceed $7,000.
DOE shall issue payment directly to the provider(s) within 35 days of submission of a copy of the invoice.
4. FURTHER ORDERED that the CSE shall meet within 14 school days after all evaluations have been made available to the District to consider the new data (i.e., the contents of the evaluations) and decide what changes, if any, are appropriate to the Student’s IEP and the services offered to him, given the findings of the evaluators. The CSE shall also, after due consideration, provide the Parent with prior written notice that specifically addresses whether the CSE recommended or refused to recommend the services endorsed by those providers on the Student’s new IEP and explain the basis for the CSE’s recommendation, including the evaluative information relied upon in reaching that determination.
5. FURTHER ORDERED that the Parent’s remaining claims are DENIED.
SO ORDERED.
DATED: November 1, 2023
/s/ Roberta Wolf, Esq.
Impartial Hearing Officer
Roberta Wolf
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.
DISTRICT EVIDENCE
| Exhibit | Title | Date | Pages |
|---|---|---|---|
| None |
PARENT EVIDENCE
| Exhibit | Title | Date | Pages |
|---|---|---|---|
| A | Due Process Complaint | 06/22/2023 | 20 |
| B | Neurological Evaluation by [REDACTED] | 05/17/2019 | 3 |
| C | Social History Update | 04/14/2021 | 2 |
| D | IEP | 04/26/2021 | 28 |
| E | Teacher Report | 04/27/2021 | 3 |
| F | Student Profile, Comparisons, Instructional Areas, Growth Goals | 04/28/2021 | 28 |
| G | Ten-Day Notice for 2021-2022 School Year (June 24, 2021) | 06/24/2021 | 2 |
| H | CSE Meeting Notice | 07/09/2021 | 3 |
| I | Prior Written Notice of Recommendation | 07/21/2021 | 4 |
| J | CSE Meeting Notice | 09/07/2021 | 4 |
| K | IEP | 09/17/2021 | 28 |
| L | Ten-Day Notice for 2021-2022 School Year (January 12, 2022) | 01/12/2022 | 2 |
| M | [REDACTED] Enrollment Agreement (2021-2022) | 03/09/2022 | 12 |
| N | [REDACTED] Program Description & Class Schedule (2021-2022) | 06/16/2022 | 2 |
| O | [REDACTED] Program Description | 06/16/2022 | 2 |
| P | Ten-Day Notice for 2022-2023 School Year | 08/24/2022 | 1 |
| Q | Letter from Dr. [REDACTED] re: Support for [REDACTED] | 10/13/2022 | 1 |
| R | [REDACTED] Course Change Supplement (2022-2023) | 10/25/2022 | 2 |
| S | [REDACTED] Attendance Document (w/ Costs) (2021-2022) | 02/25/2023 | 6 |
| T | Parent Contract for District Students | 03/01/2023 | 11 |
| U | Attendance Document (2022-2023) | 08/16/2023 | 16 |
| V | 2022-2023 Student Schedule | 2022-2023 | 1 |
| W | 2022-2023 [REDACTED] Enrollment Contract | 2022-2023 | 11 |
| X | Affidavit of Costs ([REDACTED] 2022-2023) | 10/24/2022 | 1 |
| Y | [REDACTED] Affidavit (2021-2022) | 03/02/2023 | 2 |
| Z | [REDACTED] Affidavit (2022-2023) | 08/16/2023 | 1 |
| AA | [REDACTED] Unofficial High School Transcript | Undated | 2 |
| BB | Teacher Reports | Undated | 6 |
| CC | [REDACTED] Summary | Undated | 12 |
| DD | Progress Report | Undated | 1 |
| EE | Family Report | Undated | 4 |
| FF | Affidavit of [REDACTED] | 10/05/2023 | 8 |
| GG | Affidavit of [REDACTED] | 10/10/2023 | 6 |
Footnotes
[1] Ex. A.
[2] Id.
[3] DOE filed prior written notice of its recommendations for a school year not at issue (2023-2024) on February 15, 2023.
[4] Ex. D1.
[5] Ex. B.
[6] Ex. D4.
[7] Id.
[8] Id.
[9] Id.
[10] Ex. Q.
[11] Ex. FF2.
[12] Ex. GG1.
[13] Ex. D25.
[14] Ex. D28.
[15] Ex. D20, D21.
[16] Ex. D.
[17] Ex. D27, C1, GG.
[18] Ex. D27.
[19] Ex. Ex. H, I.
[20] Ex. K.
[21] Ex. GG3.
[22] Ex. L.
[23] Ex. GG3.
[24] Ex. GG4, P.
[25] Ex. O, FF.
[26] Ex. F.
[27] Ex. FF4.
[28] Id.
[29] Ex. O.
[30] Id.
[31] Ex. FF5.
[32] Ex. FF5.
[33] Ex. AA, BB.
[34] 20 U.S.C. § 1412 (a)(1)(A); Education Law §§ 4402(2)(a), (b)(2).
[35] Board of Education v. Rowley, 458 U.S. 176, 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005).
[36] 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 (S.D.N.Y. 2007).
[37] 20 U.S.C. § 1415(f)(3)(E)(i).
[38] School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993); Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 (2d Cir. 2006), cert denied, and Board of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 WL 2982269 (Oct. 15, 2007).
[39] Rowley, 458 U.S. at 203.
[40] See 34 C.F.R. § 300.320(a)(4); 8 NYCRR 200.4(d)(2)(v); see Application of the Dep’t of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep’t of Educ., Appeal No. 06- 029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02- 014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9.
[41] Endrew F. v. Douglas County School District, 137 S. Ct. at 1002 (2017).
[42] I further find that the Parent’s Section 504 claim is subsumed by the above IDEA analysis. The Parent did not identify any distinct regulatory requirement under Section 504 that is not subsumed; therefore, I will not separately analyze 504 claims raised in the DPC.
[43] Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 115 (2d Cir. 2007) (citing Frank G., 459 F.3d at 365 (quoting Rowley, 458 U.S. at 188-89)).
[44] Gagliardo at 363.
[45] C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 837, 63 IDELR 1 (2d Cir. 2014).
[46] Id.
[47] M.S. v. Board of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 105, 33 IDELR 183 (2d Cir. 2000).
[48] S.W. v New York City Dep’t of Educ., 646 F. Supp. 2d 346, 361-363 (S.D.N.Y. 2009).
[49] Ex. Y, Z.
[50] 8 NYCRR 200.4(b)(4).
[51] 975 F.3d 152, 162-163 (2d Cir. 2020).