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CASE NUMBER: 603999 - NYC: 251760
FINDINGS OF FACT AND DECISION
Case Number: 251760
Student’s Name: REDACTED (“Student”)
Date of Birth: REDACTED
School District: REDACTED
Hearing Requested by: REDACTED (“Parent”)
Request Date/Date Complaint Filed: July 14, 2023
Date(s) of Hearing: September 5, 2023
Actual Record Closed Date: September 30, 2023
Date of Decision: September 30, 2023
Date of Distribution if Different than Decision Date: September 30, 2023
Hearing Officer: Marcel P. Denis, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 5, 2023
For the Student:
REDACTED, Attorney
REDAC TED, Parent
REDACTED, Interpreter
For the Department of Education:
REDACTED, Esq., District Representative
INTRODUCTION AND PROCEDURAL HISTORY
On July 14, 2023, the parents (the “Parent”) of REDACTED (the “Student”) filed a due process complaint under the Individuals with Disabilities Education Act (the “IDEA”) [20 U.S.C. section 1415(f)] and Section 4404(1) of the New York State Education Law against the New York City Department of Education (the “DOE”) under case number 251760. I was appointed as impartial hearing officer (“IHO”) in that proceeding on July 17, 2023. On September 5, 2023, the parties held a substantive hearing, and the DOE did not present a case nor cross examined the witnesses presented by the parents. The compliance date for issuing a decision in this proceeding has been extended.
A hearing was held on September 5, 2023. It was a closed hearing, and Parents were represented by attorney REDACTED and the DOE was represented by attorney REDACTED. Parents entered into evidence exhibits: A through V. The DOE did not enter any exhibits into evidence. The list of exhibits is appended to the decision.
JURISDICTION
The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.
BACKGROUND AND POSITIONS OF THE PARTIES
REDACTED is a REDACTED-year-old student who is diagnosed and classified by the CSE as a student with “Autism” (P-Ex. A). The student’s classification and eligibility for special education supports and services are not in dispute. The Parents unilaterally placed the Student at the REDACTED for the 2023/2024 school year. In this proceeding, the Parents request that the DOE be directed to fund the Student’s unilateral placement at REDACTED for the 2023/2024 school year by making payment directly to the school. The Parents further maintain that the REDACTED School placement is appropriate and that equitable factors support the tuition reimbursement claim.
The DOE did not deny the parent’s assertion that FAPE was not provided because the IEP provided was inappropriate. The DOE did not meet its burden of production and persuasion. The DOE offered no evidence package or witness testimony. The DOE did cross-examine the parent but presented no defense. Therefore, parents’ factual allegations and legal conclusion went unchallenged.
The Parents submitted a documentary evidence package, which included the Ten-Day Notice from Parents to the CSE and the affidavit of Tuition Payments.
ISSUES
Whether a denial of FAPE occurred when the DOE failed to offer the student an appropriate IEP and school Placement?
Whether the parent is entitled to reimbursement when the DOE failed offer a cogent explanation as to the appropriateness of the IEP coupled with the failure to establish that equity weighs against the parent?
FINDINGS OF FACT
The student is REDACTED years old and attends REDACTED, a unilaterally placed private school located in REDACTED.[1] The student is found eligible for Special education and related services as having a disability under the IDEA and Article 89 of the New York Education Law and Part 200 of Title 8 of the Regulations of the Commissioner of Education.[2] The Parents assert that the student’s disability affects the student’s learning ability.”[3] The student “is diagnosed and classified with Autism.”[4]
To address the student’s educational needs, the DOE convened a CSE meeting on November 21, 2022, the parent “attended [ ] the meeting but despite her requests for the Department to provide [the Student] a program and services to make meaningful progress, the Department made the same recommendation it had in the past.”[5] The Parents notified the district of their dissent with the program offered on June 16, 2023 together with the failure to receive “a placement recommendation for the twelve month 2023/2024 school year.”[6] The parents further alerted the DOE about the student’s failure to make meaningful progress with the district recommended program and short of incorporating the independent neuropsychologist’s recommendation of a small class size of six to eight students, with one-to-one (“1:1”) instruction, ABA therapy, and Positive Behavior Interventions daily, the Student would continue to regress.[7] On June 16, 2023, the parents served on the DOE a Ten-Day Notice in which they reiterated their dissent with the recommended program together with the fact that they never received “a placement recommendation for the 2023/2024 [ ]12-month school year” (P-Ex. A). The parents, having received no answer from the DOE, filed a DPC on July 14, 2023, alleging denial of a FAPE. The DOE did not file an answer to the Parents’ Due Process Complaint. During the hearing, the DOE, through its counsel, did not contest the parent’s factual allegations or legal conclusion. The DOE offered no evidence or testimony to show the appropriateness of the IEP and the recommended program. Although the DOE cross-examined the Student’s parent, the inquiry was geared more toward the number of years that the child attended REDACTED as opposed to the inappropriateness of the program at REDACTED. Therefore, there is no factual dispute as to the parent’s entitlement to reimbursement for the unilateral placement.
CONCLUSION OF LAW
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 Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). 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” Endrew F. v. Douglas County Sch. Dist. RE-1, No 15-827, 2017 WL 1066206, 137 S.Ct. 988, 69 IDELR 174 (U.S. Mar 22, 2017).
Decisions of impartial hearing officers must be on substantive grounds based on a determination of whether a the student received a FAPE, 8 NYCRR § 200.5(j)(4)(i), except as follows:
In matters alleging a procedural violation, an impartial hearing officer may find that a student did not receive a free appropriate public education only if the procedural inadequacies impeded the student’s right to a free appropriate public education, significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of a free appropriate public education to the parent’s child, or caused a deprivation of educational benefits. Nothing in this paragraph shall be construed to preclude an impartial hearing officer from ordering a school district to comply with procedural requirements under this Part and Part 201 of this Title 8 NYCRR § 200.5(j)(4)(ii).
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 (NYS Educ. Law § 4404(1)(c)).
A board of education may be required to pay for educational services obtained for a child by the child’s parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim. (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]; see also Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 [2d Cir. 2006], cert denied, Board of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 WL 2982269 [Oct. 15, 2007].
The Parents raised multiple challenges to the committee on special education (“CSE”) program and placement recommendations. The DOE did not even attempt to show that it offered the Student a FAPE for the 2023/2024 school year The Supreme Court has found that “[a] reviewing court may fairly expect those authorities [school district staff] 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.” Endrew F. v. Douglas County School District, 137 S. Ct. at 1002 (2017). Where the district lay silent and entered no evidence or witnesses to controvert the parent’s position, “the parent is entitled to a presumption as to the truth of the asserted facts underlying her IDEA claim,” and the district’s failure to provide a cogent explanation must be accepted to mean that it “intended to admit every deficiency alleged by the parents in the [DPC] to the extent not contradicted by the hearing record.” SRO Appeal No. 19-06, at 18-19.
The DOE offered no evidence or witness testimony to explain the appropriateness of the IEP. Therefore, the DOE did not meet its burden of proof in this proceeding. The Parents, on the other hand, met the first of the three Burlington/Carter criteria for tuition reimbursement.
The Parents have the burden of proving that the unilateral placement was appropriate. To meet this burden, the Parents must establish, by a preponderance of the evidence, that the unilateral placement provides “educational instruction specifically designed to meet the unique needs of the student” (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 [2d. Cir. 2007]. However, the private school placement “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements” (Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d. Cr. 2006]). The private placement need not provide certified special education teachers or an IEP. Parental placements are not subject to the same mainstreaming requirements as a school district placement. The private school placement must be reasonably calculated to enable the child to receive educational benefits, and must be likely to produce progress, not regression.
The standard to apply is whether “[the] unilateral private placement ... provides educational instruction specifically designed to meet the unique needs of a handicapped child.” Gagliardo, 489 F.3d at 115): 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. Gagliardo. 489 F.3d at 112 (quoting Frank G, 459 F.3d at 364-65).
Compensatory Education
The Parents request compensatory education or compensatory services for the District’s failure to provide the Student with a FAPE for the 2022-2023 school year due to the district’s failure to transport the Student as mandated. A hearing officer may award compensatory education relief in the form of supplemental special education or related services when there has been a denial of FAPE (see P. v. Newington Bd. of Educ., 546 F.3d 111, 123 [2d Cir. 2008]. An award of compensatory services may be appropriate if a student has been denied appropriate services for an extended period of time and if such deprivation of instruction can be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation. Compensatory education may be awarded to students under the age of twenty-one (see Student X. v. New York City Dep't of Educ., 2008 WL 4890440, [E.D.N.Y. Oct. 30, 2008]. An award of additional services should aim to place a student in the position he or she would have been in had the district complied with its obligations under the IDEA (P. v. Newington, 546 F.3d 111, 123 (2d Cir. 2008)).
The Parents requested a bank of 60 hours of compensatory ABA services resulting from the district’s failure to pick up the Student during the summer program. The Parents presented affidavit testimony regarding the need for the Student to receive ABA services on a continuous basis in order to make educational gains (P-Ex. R). The district did not controvert the Parents’ allegations. Therefore, deemed admitted and the Parents’ request for a bank of compensatory hours is granted.
ANALYSIS
This case involves a parentally placed student with an individualized education program (“IEP”). The DOE did not challenge the Parents’ contention that the REDACTED School placement was an appropriate program and placement for the Student. The Parents presented the affidavit testimony of the BCBA and the Student’s mother; the Parents also submitted substantial documentary evidence in support of their position that the REDACTED School placement was appropriate (P-Exs. E, F, H, I and J). The testimony of the Parents’ witnesses (which was uncontroverted) and the Parents’ documentary evidence established that the REDACTED School placement was appropriate and has been providing the Student with educational instruction that is specifically designed to meet the Student’s unique special education needs, supported by such services that are necessary to permit the Student to benefit from instruction.
The Parents have therefore met the second of the three Burlington/Carter criteria for tuition reimbursement.
The determination of whether equitable factors support a parent’s claim for tuition reimbursement hinges, in large part, on whether the parent cooperated with the CSE. The Parent served the DOE with a Ten-Day Notice that went unanswered or acknowledged (P-Ex. P). The DOE did not raise any issues that would limit or preclude tuition reimbursement. In that regard, the DOE did not make a showing why tuition reimbursement should be denied on equitable grounds. Moreover, the testimony and documentary evidence make clear that the Parent cooperated with the CSE and provided the DOE with appropriate and timely written notice (Parent Ex. P).
Based on the foregoing, I find that equitable factors support the Parent’s claim for tuition reimbursement for the 2023/2024 school year. The Parents have therefore met the third of the three Burlington/Carter criteria for tuition reimbursement. Having met all three of the Burlington/Carter criteria, the Parents are entitled to reimbursement for the cost of the Student’s 2023/2024 REDACTED School placement.
The Student is entitled to services on a twelve-month school year basis (P-Exs. F, and G). The cost of the twelve-month REDACTED School placement is $176,600 (P-Exs. F and G). The DOE did not oppose the relief sought by the parents.
The Parents’ contention that they do not have the financial means to pay tuition directly to REDACTED thus, are entitled to reimbursement is supported by the ruling in Connors v. Mills, 34 F. Supp. 2d 795, 132 Ed. Law Rep. 767 (N.D.N.Y., 1998). The Parents’ tax returns were not offered into evidence. However, the mother testified that the Student’s father is REDACTED and her income is only $REDACTED a month (P-Ex. Q); such testimony demonstrates the parents’ inability to shoulder the tuition cost at REDACTED school (P-Ex. F, G). As the Court in Connors held, “once the Burlington prerequisites relative to a [] private school are met, and a parent shows that his or her financial circumstances eliminate the opportunity for unilateral placement [], the [DOE] must pay the cost of private placement immediately” (Connors v. Mills at 805-806).
The Parents have requested that tuition funding be in the form of direct funding to REDACTED (P-Ex. Q). The DOE did oppose the request for direct tuition and related services funding but failed to show any basis for denial. The mother’s testimony supports their contentions regarding the need for direct tuition funding. The request that the DOE be directed to fund the cost of the Student’s 2023/2024 REDACTED School enrollment by issuing payment directly to the school is therefore granted.
The signed contract is included in the Hearing Record (Parent Ex. F) and need not be resubmitted prior to reimbursement.
Based on the aforementioned and the evidence presented, I find that the DOE denied the student a FAPE; therefore, the relief sought by the Parents is hereby granted.
ORDER
IT IS HEREBY ORDERED that the New York City Department of Education is directed to fund the cost of the Student’s 2023/2024 twelve-month school year placement and related services at the REDACTED school in a total amount not to exceed $176,600.00; payment shall be made directly to REDACTED no later than two (2) weeks from receipt of the present order; and it is further
ORDERED that the New York City Department of Education is directed to provide and fund the foregoing program on a twelve-month school year basis by reimbursing the Parents for any payments they made to REDACTED school within two weeks of the submission of proof of payment, by issuing payment directly to REDACTED School for any balance due within two weeks of the submission of an affidavit setting forth the amount due; it is further
ORDERED that the New York City Department of Education is directed to provide and fund the foregoing program on a twelve-month school year basis by providing the Student with specialized transportation to and from REDACTED for the 2023/2024 school year; it is further
ORDERED that the New York City Department of Education is directed to provide and fund the foregoing program on a twelve-month school year basis by providing the Student with 10 hours per week of at-home ABA services at a rate not to exceed $330 per hour; it is further
ORDERED that the New York City Department of Education is directed to provide the Student with the following services as compensatory education for the failure to provide the Student with a FAPE for the summer of 2022/2023 as a result of OPT’s early pick up: a bank of 60 hours of compensatory ABA services at enhanced market rate by a provider of the Parents’ choosing which may be provided during the school year or during the summer, on weekdays, weekends, on holidays, or during school vacations.
Dated: September 30, 2023
_______________________________
Marcel P. Denis, 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.
DOCUMENTS ENTERED INTO THE RECORD
IHO Exhibits
N/A
DOE Exhibits
N/A
Parent Exhibits
| Exhibit | Title | Date | Number of Pages |
|---|---|---|---|
| P-A | Parent's Impartial Hearing Request | 7/14/23 | 9 |
| P-B | Findings of Fact and Decision Case #228325 | 1/31/23 | 18 |
INDIVIDUALIZED EDUCATION PROGRAMS
| Exhibit | Title | Date | Number of Pages |
|---|---|---|---|
| P-C | IEP | 11/10/21 | 56 |
| P-D | IEP | 11/21/22 | 31 |
THE REDACTED SCHOOL DOCUMENTS
| Exhibit | Title | Date | Number of Pages |
|---|---|---|---|
| P-E | REDACTED Program Description | Undated | 2 |
| P-F | REDACTED Enrollment Contract | 6/13/23 | 3 |
| P-G | REDACTED Tuition Affidavit | 7/6/23 | 1 |
| P-H | Student's REDACTED Schedule (Summer) | 2023-2024 | 1 |
| P-I | Student's REDACTED Progress Report | 2022-2023 | 31 |
| P-J | REDACTED Attendance Records | 2023-2024 | 1 |
EVALUATIONS
| Exhibit | Title | Date | Number of Pages |
|---|---|---|---|
| P-K | Neuropsychological Evaluation | 5/28/20 | 13 |
| P-L | ABA Skills Assessment | 6/11/20 | 27 |
| P-M | REDACTED Progress Report | 1/31/23 | 6 |
CORRESPONDENCE
| Exhibit | Title | Date | Number of Pages |
|---|---|---|---|
| P-N | Prior Written Notice & School Location Notice | 6/23/23 | 14 |
| P-O | Parent’s Email to DOE re: Recommended School | 6/26/23 | 1 |
MISCELLANEOUS
| Exhibit | Title | Date | Number of Pages |
|---|---|---|---|
| P-P | Parent’s 10-day Letter and Email to DOE | 6/16/23 | 5 |
| P-Q | Affidavit of REDACTED, Parent | 8/4/23 | 3 |
| P-R | Affidavit of REDACTED, BCBA | 8/7/23 | 4 |
| P-S | REDACTED, Curriculum Vitae | Undated | 2 |
| P-T | REDACTED, Curriculum Vitae | Undated | 1 |
| P-U | REDACTED Rate Sheet | 1/1/23 | 2 |
| P-V | Affidavit of REDACTED | 8/9/23 | 3 |
Footnotes
[1] Due Process Complaint, Petitioner.
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.