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CASE NUMBER: 604357- NYC: 252027
FINDINGS OF FACT AND DECISION
Case Number: 252027
Student’s Name: [REDACTED] (“Student”)
Date of Birth: [REDACTED]
School District: [REDACTED]
Hearing Requested by: [REDACTED] (“Parents”)
Request Date/Date Complaint Filed: July 25, 2023
Date(s) of Hearing: September 22, 2023
Actual Record Closed Date: September 27, 2023
Date of Decision: October 6, 2023
Time Sensitive Yes
Hearing Officer: Robin Levin, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 22, 2023
For the Student:
[REDACTED] (“Parents’ Attorney 1”)
[REDACTED] (“Parents’ Attorney 2)
[REDACTED] (“Parents”)
[REDACTED] (“CSE Liaison at the Private School”)
For the Department of Education:
[REDACTED] (“DOE Attorney”)
INTRODUCTION
This is a decision rendered after a due process hearing (“DPH” or “hearing”) pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1400 et seq., and its implementing regulations, 34 C.F.R. §300 et seq., the New York State Education Law, Educ. Law Article 89 §4404 et seq., and its implementing regulations, 8 NYCRR §200.5 et seq.[1] This case concerns Student, a [REDACTED] -year-old, who is classified as a student with a Learning Disability. [2]
On July 25, 2023, the Parents, through their attorney, filed a Due Process Complaint (“DPC”) against the New York City Department of Education (“DOE” or District”).[3] In the DPC, the Parents alleged that the DOE failed to offer the Student a Free Appropriate Public Education (“FAPE”) for the 2022-2023 school year.[4] The Parents alleged that the Committee on Special Education (“CSE”) convened on December 8, 2021 to develop Individualized Education Program (“IEP”) for the Student.[5] The CSE recommended an Integrated Co-Teaching (“ICT”) classroom with Special Education Teacher Support Services (“SETSS”) in English Language Arts (“ELA”) along with occupational therapy and assistive technology.[6] The Student remained in the recommended program during the 2021-2022 school year.[7] Throughout the 2021-2022 school year, the Parents did not believe the program and placement were appropriate for the Student.[8] The Parents alleged that the ICT classroom was too large for the Student and the related services were not meeting the Student’s needs or allowing him to make meaningful progress.[9] The Parents believed the Student needed a small, specialized program based on the recommendations of the Neuropsychologist.[10] The Parents expressed their concerns to the CSE, but the CSE did not reconvene an IEP meeting prior to the beginning of the 2022-2023 school year.[11] Therefore, the Parents unilaterally placed the Student in a private school (“Private School”) for the 2022-2023 school year.[12] Subsequently, on November 16, 2022, the CSE reconvened to develop an IEP for the Student for the remainder of the 2022-2023 school year.[13] The CSE recommended the same ICT classroom with related services as recommended in the Student’s prior IEP, and the Parents disagreed. [14]
By way of relief, the Parents seek an award of tuition reimbursement for the Student’s attendance at the Private School for the 2022-2023 school year.[15] The Parents argued that the Private School was an appropriate placement for the Student for the 2022-2023 school year.[16] The Parents alleged that the equities support their claim for tuition reimbursement for the school year at issue since the Parents fully cooperated with the CSE.[17] In addition, the Parents seek specialized transportation services for the Student to and from the Private School and reimbursement for transportation costs if the DOE does not provide the transportation services. [18]
As discussed below, I find that the DOE denied the Student a FAPE for the 2022-2023 school year. I find that the Private School provided the Student specially designed instruction sufficient to meet the Student’s needs. I find that the equities support the Parents’ request for tuition reimbursement. In addition, I find that the Student is entitled to specialized transportation services to and from the Private School, and the Parents should be reimbursed for any out-of-pocket expenses incurred by transporting the Student to and from the Private School.
PROCEDURAL HISTORY
On July 26, 2023, I was appointed as the Impartial Hearing Officer (“IHO”). On August 29, 2023, the parties appeared via videoconferencing for a pre-hearing conference (“PHC”), and the case was scheduled for a Due Process Hearing (“DPH” or “hearing”). [19]
A virtual DPH was held on September 22, 2023. It was a closed hearing. The Student’s Parents were present and represented by Parents’ Attorney 1. The DOE Attorney was also present. The DOE Attorney declined to give an opening statement.[20] The DOE Attorney declined to admit any documentary evidence into the hearing record or call any witnesses at the hearing.[21] In addition, the DOE conceded that the DOE did not provide a FAPE to the Student for the 2022-2023 school year.[22] The Parents’ Attorney gave an opening statement and sought the entry of 17 exhibits into the hearing record without objection, including affidavit testimony from Parent 1 and affidavit testimony from the CSE Liaison at the Private School.[23] The CSE Liaison at the Private School testified live for cross-examination.[24] The DOE Attorney declined to cross-examine Parent 1, but I asked Parent 1 clarifying questions.[25] The Parents rested, and the parties gave closing statements.[26] The record was closed on September 27, 2023 after receipt of the hearing transcript.
The DOE took the position that the Parents failed to meet their burden at the hearing to show that the unilateral placement at the Private School was appropriate for the Student.[27] The Parents took the position that not only did the DOE Attorney concede that the DOE failed to provide the Student a FAPE for the 2022-2023 school year, the record supports a finding that the DOE failed to meet its burden at the hearing.[28] In addition, the Parents argued that the hearing record demonstrates that the unilateral placement at the Private School was appropriate for the Student for the 2022-2023 school year.[29] Lastly, the Parents argued that the DOE did not raise any equity issues and the evidence shows that the Parents fully cooperated with the DOE throughout the IEP process. [30]
FINDINGS OF FACT
After a full review of the hearing record, I make the following findings of fact and determinations. Overall, I find all exhibits admitted into the hearing record to be relevant and representative of the facts for which they were offered. As for the witnesses, I find no reason to doubt the veracity of their testimonies and therefore, I find all the witnesses credible. I base the following on the record generated at the hearing.
The Student is currently [REDACTED] years old and was in the [REDACTED] grade at the Private School for the 2022-2023 school year.[31] The Student is classified as a student with a Learning Disability by the DOE’s CSE.[32] The Student was first referred for evaluations in April of 2018 after his kindergarten teacher at the Public School spoke to the Parents about the Student’s difficulties with writing and visual-motor integration, which was making it difficult for the Student to learn and make progress in the classroom.[33] Shortly thereafter, the CSE convened to create an IEP for the Student, and recommended that the Student repeat kindergarten in an ICT classroom with occupational therapy for the 2018-2019 school year.[34] The Student remained in an ICT classroom with related services for first grade, and by the end of the 2019-2020 school year, the Student was not making sufficient progress in reading, and the Student’s teachers told the Parents that the Student may need the support of a specialized school. [35]
In July of 2020, the Parents arranged for a private neuropsychological evaluation by the Neuropsychologist.[36] The Neuropsychologist diagnosed the Student with Specific Learning Disorder with Impairment in Reading (“Dyslexia”) and recommended that the Student remain in an ICT classroom with “individualized instruction in reading with a designated reading specialist” for 45 to 60 minutes per day and additional related services and small group instruction.[37] For the 2020-2021 school year, the Student remained in the Public School for second grade and Special Education Teacher Support Services (“SETSS”) four times per week and additional reading support was added to the Student’s program, but the Student was not making adequate progress in reading by the end of the school year.[38] For the 2021-2022, the Student continued in the Public School for third grade and an IEP meeting was held on December 8, 2021.[39] The CSE recommended the same ICT classroom setting with SETSS for English Language Arts (“ELA”) four time per week, occupational therapy twice per week for 30 minutes, and the use of an assistive technology device.[40] The Parents participated in the IEP meeting and expressed their concerns regarding the Student’s lack of progress in the same program during the previous school year. [41]
In June of 2022, the Parents arranged for the Student to undergo an updated neuropsychological evaluation by the Neuropsychologist.[42] The Student’s Dyslexia diagnosis was reconfirmed and the Student was also diagnosed with Specific Learning Disorder with Impairment in Written Expression (“Dysgraphia”).[43] The Neuropsychologist found that the Student “requires an increase in specialized school-based interventions and accommodations” because in “comparison with his previous evaluation… [the Student] has not made adequate progress in his reading and writing skills despite intervention.”[44] The Neuropsychologist found that the Student now needs “a full-time, special education program, with a small class size and low student-teacher ratio that can provide intensive intervention in reading and writing and individualized support” with teachers and specialist who are trained in and use evidence-based instructional programs. [45]
On August 22, 2022, the Parents wrote a letter to the CSE (“Ten-Day Notice”) through their attorney expressing their concerns with the December 2021 IEP, and requesting that the CSE reconvene prior to the beginning of the 2022-2023 school year as the December 2021 IEP had already proved to not be an appropriate program for the Student.[46] The Ten-Day Notice informed the DOE about the Parents’ intention to enroll the Student at the Private School and seek tuition reimbursement for the 2022-2023 school year if the DOE failed to address the Parents’ concerns and offer the Student a FAPE.[47] The CSE did not reconvene an IEP meeting to address the Parents’ concerns regarding the Student’s program for the upcoming 2022-2023 school year prior to the commencement of the school year.[48] Instead, the CSE reconvened two months after the start of the 2022-2023 school year, on November 16, 2022 and recommended the same program for the Student which consisted of an ICT classroom with SETSS and other related services.[49] Parent 1 attended the November 16, 2022 IEP meeting and expressed her concerns with this program as it was the same program the Student had previously where he did not make meaningful progress. [50]
On May 26, 2022, the Parents enrolled the Student at the Private School and executed an Enrollment Contract for the 2022-2023 school year.[51] According to the Enrollment Contract, the Parents were liable for the entire cost of tuition in the amount of $67,500.00.[52] The Parents have paid the entire amount in full.[53] The Student attended the Private School for the entire 2022-2023 school year, from September 6, 2022 to June 14, 2023. [54]
The Private School “is a co-educational specialized school for students in grades kindergarten through 12th grade with language-based learning disabilities.”[55] The Private School is approved by the New York State Education Department for the provision of special education services, and “provides a supportive, structured, nurturing, and fun environment” where “students learn in small group settings…designed to meet their individual needs.”[56] The Private School employs head teachers with master’s degrees and certification in teaching students with disabilities in New York.[57] The Private School employs assistant teachers as well and requires assistant teachers to have graduated from a four-year college.[58] In addition, all related service providers employed by the Private School are licensed in their area of expertise.[59] The Private School also provides trainings and professional development to all teachers and related service providers throughout the school year. [60]
A typical class at the Private School has up to twelve students with two teachers.[61] For the 2022-2023 school year, the Student was placed in small academic classes with one head teacher and one assistant teacher.[62] The Student’s schedule consisted of Community Math, Decoding, Writing, Social Studies, Art, Science, Library, Music, Physical Education, STEAM, Comprehension, and Current Events.[63] At the beginning of the school year, the Student “presented with particular deficits in written expression as well as decoding, reading fluency, and comprehension. Additionally, [the Student] struggled with maintaining attention and impulse control.”[64] The CSE Liaison testified credibly regarding the program provided to the Student by the Private School.[65] The Private School provided the Student with “two periods per day of reading instruction. One of those periods was devoted specifically to instruction in decoding, while the other period was devoted to developing [the Student’s] reading comprehension skills.”[66] The Student’s teachers used scaffolding, repetition, and review to address the Student’s language deficits and support the Student’s learning.[67] The Student’s decoding class had seven students and two teachers while his reading comprehension class had three students and two teachers.[68] For decoding, the Student’s teachers used the “Fundations Level 2 program, which is a multisensory learning program based on the Wilson Reading System.”[69] Instruction using this program incorporates “multisensory devices such as manipulatives, sound cards, interactive games, and class dictations.”[70] By the middle of the 2022-2023 school year, the Student was “able to write words with learned spelling patterns in isolation and within the context of a sentence.”[71] By the end of the school year, the Student’s understanding of new spelling patterns progressed, and the Student was participating and volunteering in class more often.[72] During the 2022-2023 school, the Student’s reading level went from level J to level L. [73]
For writing, the Student had three period per week in a class of twelve students with two teachers.[74] The teachers used “structured, sequential, multisensory writing programs” such as the EmPower writing curriculum and Unlocking Sentences program.[75] In addition, the teachers used devices such as checklists and graphic organizers to assist the Student in developing his writing skills.[76] The Student completed a personal narrative while applying “learned skills and strategies such as sensory details and an enticing first sentence.”[77] The Student improved his paragraph writing abilities, and by the end of the school year, the Student successfully “wrote a persuasive essay on why plastic water bottles should be banned.” [78]
For math, the Student was placed in a class with thirteen students and two teachers.[79] The math teachers used the Math in Focus Level 4 curriculum, using “concrete explanations manipulatives, visual models, and reinforcement of previously learned concepts.”[80] Throughout the school year, the Student’s participation increased and his enthusiasm and ability in solving long division problems increased as well.[81] Moreover, for social studies and science, the Student was placed in a class of twelve with two teachers.[82] The teachers in both subjects used hands-on demonstrations and activities to help the Student learn new concepts. [83]
Furthermore, the Private School also provided related services to the Student including speech-language therapy, occupational therapy, and counseling services.[84] The Student received speech-language therapy by a certified speech-language therapist twice per week, which focused on the Student’s story-telling abilities, comprehension skills, and responding to “higher-order” thinking questions.[85] The Student improved his ability to summarize jointly read texts and progressed in his higher-level language skills.[86] In addition, the Student received occupational therapy three times per month by a licensed occupational therapist, working on his handwriting speed, handwriting accuracy, and typing.[87] The Student also received counseling from the school psychologist which focused on the impact of one’s behavior on other people, positive peer interactions, conflict resolution, problem solving, and appropriate conversation skills.[88]
CONCLUSIONS OF LAW AND ANALYSIS
This case concerns the Parents’ request that the DOE reimburse them for the cost of the Student’s tuition for the 2022-2023 school year.[89] When a parent believes that a school district has failed to provide a student with a FAPE, a parent may unilaterally enroll the child in a private school and seek tuition payment from the school district by filing a due process complaint.[90] The due process complaint may address “any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education.” [91]
A district must pay for the cost of a student’s tuition at a private school if the three “prongs” of the Burlington/Carter test are met: (1) the district denied the student a FAPE; (2) the private school unilateral placement is appropriate; and (3) the equities favor an order of tuition reimbursement or funding.[92] In due process hearings under the IDEA in New York, school districts have the burden of proof, including the burden of production and burden of persuasion. However, there is an exception in that a parent seeking tuition reimbursement or funding for a unilateral parental placement has the burden of persuasion and burden of production regarding the appropriateness of such placement. [93]
Prong 1
The IDEA and the New York Education Law require school districts to offer a FAPE to each child with a disability residing in their district who requires special education programs or services.[94] A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written IEP.[95] A school district has offered a student a FAPE when it complies with the procedural requirements set forth in the IDEA, and the IEP is reasonably calculated to enable the student to receive educational benefits.[96] Under the IDEA, students with disabilities are entitled to be educated in the least restrictive environment that meets their unique needs. [97]
Parents may allege procedural and/or substantive FAPE violations. For procedural violations, a denial of a FAPE only occurs “if the procedural inadequacies- (I) impeded the child’s right to a [FAPE]; (II) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a [FAPE] to the parents’ child; or (III) caused a deprivation of educational benefits.” [98]
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.”[99] The District must offer “an IEP that is ‘likely to produce progress, not regression,’ and ... affords the student with an opportunity greater than mere ‘trivial advancement.’”[100] A school district must be able to “offer a cogent and responsive explanation for their decisions” in creating the IEP.[101] The IEP must be reviewed at least annually, and a district must have an IEP in place for each student with a disability within its jurisdiction at the beginning of each school year.[102] The IEP should: (1) accurately reflect the results of evaluations to identify the student’s needs,[103] (2) provide for the utilization of sufficient special education programs or services,[104] and then (3) the IEP must be properly and timely implemented.[105] Failure to implement substantial or significant provisions of an IEP is a denial of a FAPE. [106]
In this case, the Parents alleged that the DOE denied the Student a FAPE for the 2022-2023 school year.[107] The Parents alleged the CSE convened on December 8, 2021 and November 16, 2022 to develop IEPs for the Student and both IEPs were inappropriate for the Student because the recommended program consisting of an ICT classroom with related services including SETSS, occupational therapy, and assistive technology had already proven to not provide the Student with the support and tailored academic instruction he needs to make sufficient progress.[108] The Parents alleged that the Student previously attended the Public School in an ICT classroom with related services for multiple school years where his deficiencies in reading and writing were not appropriately addressed. [109]
As to Prong 1 of the Burlington/Carter standard, I find that the DOE failed to meet its burden at the hearing. The DOE Attorney did not seek to admit any documentary evidence into the record.[110] In addition, the DOE Attorney waived the DOE’s opening statement, did not present any witness testimony, and conceded that the DOE failed to provide the Student with a FAPE for the 2022-2023 school year.[111] Therefore, the DOE declined to offer any evidence at all of a FAPE being provided to the Student and declined to “offer a cogent and responsive explanation for their decisions” in creating both the December 8, 2021 and November 16, 2022 IEPs. It is through the IEP that “[t]he ‘free appropriate public education’ required by the Act is tailored to the unique needs of” a particular child.[112] The DOE did not present any evidence at all and thus, could not rebut the Parents’ allegations.
Moreover, regardless of whether the DOE presented any witnesses or documentary evidence at the hearing, a review of the documentary evidence admitted into the hearing record supports a finding that the DOE did not provide the Student with a FAPE for the 2022-2023 school year. I find that the IEPs developed for the Student on December 8, 2021 and November 16, 2022 were inappropriate for the Student for the 2022-2023 school year and could not meet the Student’s unique needs. The record shows that the ICT classroom recommended for the Student in the IEPs cannot provide the Student with the individualized instruction using evidence-based methodologies that the Student needs in light of his language-based learning disabilities.[113] The Student attended the Public School in an ICT classroom with related services previously for multiple school years and was not making meaningful progress in this program.[114] Therefore, I find that the programs offered to the Student for the 2022-2023 school year were inappropriate because an ICT classroom setting would not provide the Student with the tailored instruction necessary to allow him to access a meaningful education in light of his unique circumstances. The evidence in the hearing record shows that the Student required a small, full-time specialized program for students with language-based learning disabilities such as Dyslexia and Dysgraphia.[115] Therefore, I find that the DOE failed to offer the Student a FAPE for the 2022-2023 school year.
Prong 2
Next, I must consider whether the Parents’ unilateral placement at the Private School was appropriate for the Student. A unilateral private school placement is appropriate if it is “reasonably calculated to enable the child to receive educational benefits.”[116] Parents need not show that the unilateral placement is perfect or that it meets all state educational standards.[117] Instead, parents must “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.”[118] In addition, parents seeking reimbursement or tuition funding “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.”[119] While there are some exceptions, “’the same considerations and criteria that apply in determining whether the [DOE’s] placement is appropriate should be considered in determining the appropriateness of the parents’ placement.’” [120]
A unilateral placement is appropriate if it provides instruction specially designed to meet the unique needs of a student.[121] The determination of whether the unilateral placement serves a student’s individual needs and is reasonable calculated to enable a student to receive educational benefits does not depend only on one factor. Instead, courts assessing the appropriateness of a unilateral placement must consider the totality of the circumstances, including but not only, academic progress demonstrated through grades, test scores, progress reports, and regular advancement.[122] A private school placement must be “proper under the Act.”[123] This means that the Private School must offer an educational program which meets the Student’s special education needs.[124] I find that the Private School meets the Frank G. standard and provides the Student educational instruction that is designed to meet the Student’s unique needs and enable the Student to make progress in light of his language-based learning disabilities.
Here, the DOE Attorney argued in the DOE’s closing statement that “the evidence presented does not demonstrate that the chosen placement was appropriate for the [S]tudent.”[125] I disagree. I find that the evidence in the hearing record supports a determination that the Private School was appropriate for the Student for the 2022-2023 school year. Primarily, the Private School was appropriate because it provided the Student with individualized instruction in small classes with similarly functioning peers. This “comes within the IDEA definition of ‘special education,’ namely, ‘specially designed instruction . . . to meet the unique needs of a child.’”[126] The hearing record shows that the Private School serves students with language-based learning disabilities, and the Private School developed a specialized program for the Student.[127] The Student’s decoding class had seven students and two teachers while his reading comprehension class had three students and two teachers.[128] The Private School adapted instruction specifically targeting the Student’s language-based learning disabilities and provided the Student with individual and small group academic instruction and support, which helped him access a meaningful education. [129]
Additionally, the Private School was appropriate because it provided the Student with instruction from trained teachers. The law in this circuit is that “a private placement need not provide certified special education teachers…for the disabled student,” but in this case, the Private School nevertheless ensures that its teachers have the training and specialization necessary to teach the Student based on his needs.[130] The Private School employs head teachers with master’s degrees and certification in teaching students with disabilities in New York.[131] The Private School employs assistant teachers as well and requires assistant teachers to have graduated from a four-year college.[132] The Private School also provides trainings and professional development to all teachers throughout the school year.[133] Therefore, I find that the teachers have sufficient training to teach the Student based on his unique needs and learning profile.
Moreover, the Private School was appropriate because the Student made progress at the school. Significant educational progress can be a factor weighing in favor of the appropriateness of the parent’s unilateral placement.[134] While a student’s progress at the private placement is not by itself sufficient to determine whether a placement is appropriate, that progress is a relevant factor in assessing the appropriateness of the placement.[135] In this case, the Student made significant progress through the 2022-2023 school year. For instance, the Student made progress in decoding, reading comprehension, and writing.[136] By the middle of the 2022-2023 school year, the Student was “able to write words with learned spelling patterns in isolation and within the context of a sentence.”[137] By the end of the school year, the Student’s understanding of new spelling patterns progressed, and the Student was participating and volunteering in class more often.[138] During the 2022-2023 school, the Student’s reading level went from level J to level L. [139] In writing, the Student improved his paragraph writing abilities and completed a personal narrative while applying “learned skills and strategies such as sensory details and an enticing first sentence.”[140] By the end of the school year, the Student successfully “wrote a persuasive essay on why plastic water bottles should be banned.”[141] I find that the tailored curriculum provided to the Student by the Private School was critical to enabling him to learn and make progress.
Furthermore, the Private School is appropriate for the Student because it provided the Student with appropriate related services including speech-language therapy, occupational therapy, and counseling services, and the Student has shown progress in his related services.[142] The Student received speech-language therapy by a certified speech-language therapist twice per week, which focused on the Student’s story-telling abilities, comprehension skills, and responding to “higher-order” thinking questions.[143] The Student improved his ability to summarize jointly read texts and progressed in his higher-level language skills.[144] In addition, the Student received occupational therapy three times per month by a licensed occupational therapist, working on his handwriting speed, handwriting accuracy, and typing.[145] The Student also received counseling from the school psychologist which focused on the impact of one’s behavior on other people, positive peer interactions, conflict resolution, problem solving, and appropriate conversation skills.[146]
Overall, the hearing record establishes that the Student’s unique special education needs have been met by the Private School. The instruction offered at the Private School was “reasonably calculated to enable the child to receive educational benefits.”[147] I find the DOE’s argument concerning the appropriateness of the Parents’ unilateral placement without merit, and I find that the Parents have met their burden in proving that the Private School offered an educational program which met the Student’s needs under Prong 2 of the Burlington/Carter standard.
Prong 3
Under Burlington/Carter, if the parents are financially obligated to pay for the contracted tuition costs and have met their prong 2 burden, the contract must be fully reimbursed or directly funded by the district unless, as a matter of equitable considerations, the costs are excessive or should otherwise be reduced.[148] The courts have “broad discretion to consider the range of all relevant facts in determining whether and to what extent awarding relief is equitable.”[149] 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."[150] “[A] major consideration in deciding whether the third factor is satisfied is whether the parents have cooperated with the [DOE] throughout the process to ensure their child receive[s] a FAPE.”[151] Specifically, equitable considerations include the parents’ participation in IEP meetings, visits to the proposed school placements, and notification of their unilateral placement decision to the District.[152] In addition, a hearing officer may consider many additional factors, including whether a parent’s unilateral withdrawal of the child from the public school was justified, whether the parent should have sought need-based scholarships or other financial aid from the private school, whether there was any fraud or collusion in generating, or inflating, the tuition to be charged to the school district, and whether the arrangement with the school was fraudulent or collusive in any other respect. [153]
I find that the equities favor the Parents’ claims. Here, not only did the Parents fully cooperate with the CSE, but the evidence also shows that the Parents fully participated in the IEP process.[154] The Parents’ cooperation and participation weighs in favor of the Parents’ request for a tuition award under Prong 3 of the Burlington/Carter standard.[155] Here, the Parents participated in the December 8, 2021 IEP meeting, and Parent 1 participated in the November 16, 2022 IEP meeting along with a teacher from the Private School.[156] Additionally, the Parents shared their concerns regarding the Student’s language-based learning disabilities with the CSE and provided the necessary Ten-Day Notice of their concerns with the DOE’s offer of FAPE for the Student for the 2022-2023 school year and their intent to unilaterally place the Student in the Private School.[157] The DOE did not submit any evidence at the hearing describing its response to the Ten-Day Notice, if any. In addition, the CSE did not reconvene until two months after the 2022-2023 school year begun, and the CSE still recommended the same program for the Student as the December 8, 2021 IEP despite the Parents’ concerns and the Neuropsychologist’s updated recommendations. [158] Furthermore, the DOE also did not raise any equity issues at the hearing.
Lastly, “courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable.”[159] As discussed above, the Parents signed an Enrollment Contract, and according to the Enrollment Contract, the Parents were liable for the entire cost of tuition in the amount of $67,500.00.[160] The Parents have paid the entire amount in full.[161] I find that this cost is reasonable.
Additional Relief Requested
Transportation
The IDEA requires that a school district must provide transportation for a child with a disability “if that service is necessary for a disabled child ‘to benefit from special education,’ even if that child has no ambulatory impairment that directly causes a ‘unique need’ for some form of specialized transport.”[162] Transportation may be deemed necessary “if in its absence a disabled child in private school would be denied ‘a genuine opportunity for equitable participation in [a special education program]’, . . . or special education program benefits “comparable in quality, scope, and opportunity for participation . . . [to those provided for] students enrolled in public schools.’” [163]
In addition, New York State Education Law defines special education as “specially designed instruction . . . and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability,” and requires school districts to provide disabled students with “suitable transportation to and from special classes or programs.”[164] The requested transportation must also be “reasonable when all of the facts are considered.”[165] In a guidance document, the State Education Department has indicated that the CSE should consider and document a student’s mobility, behavior, communication, physical, and health needs when determining whether or not a student requires transportation as a related service, that the IEP “must include specific transportation recommendations to address each of the student’s needs, as appropriate,” and that when determining a student’s special transportation needs, such as the need for door-to-door transportation, it must document them.[166] Other relevant considerations may include the student’s age, ability to follow directions, ability to function without special transportation, the distance to be traveled, the nature of the area, and the availability of private or public assistance. [167]
The Parents have requested an Order directing the DOE to provide appropriate special education transportation services for the Student to and from the Private School.[168] Parent 1 testified that from November 2022 until June of 2023, the DOE did provide transportation services to the Student.[169] From September 2022 to November 2022, the Parents had to arrange transportation for the Student and incurred out-of-pocket expenses.[170] I find that transportation services are appropriate and that the Student is entitled to such. I find that the Student is entitled to specialized transportation to access and benefit from his special education program. Although the 2022-2023 school year has ended, I am ordering the DOE to provide appropriate transportation for the Student as a declaration of his entitlement to such, and I am ordering the DOE to reimburse the Parents for the cost of any out-of-pocket expenses associated with transporting the Student to and from the Private School during the 2022-2023 school year.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
1. ORDERED that Parents’ claim for reimbursement for the Student’s unilateral placement at the Private School is GRANTED for the 2022-2023 school year. The New York City Department of Education shall reimburse the Parents in the amount of $67,500.00 within 15 days of the date of this Order. The DOE shall not require any documentation that is not already in the hearing record to issue reimbursement to the Parents.
2. ORDERED that the Department of Education shall provide to the Student, throughout the 2022-2023 school year, appropriate round-trip special education transportation between the Student’s residence and the Private School with pickup and drop off from the closest safe curb location. The DOE shall fund appropriate transportation consistent with this Order for any time the DOE fails to provide such transportation. The Parents shall submit an affidavit detailing their exact out-of-pocket transportation expenses during the 2022-2023 school year to the Impartial Hearing Order Implementation Unit and the DOE shall reimburse the Parents within 15 days of submission.
SO ORDERED.
DATED: October 6, 2023
____________________________
Robin Levin, Esq.
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 – EXHIBITS ENTERED INTO THE RECORD
PARENT EXHIBITS
| Exhibit | Document | Date | Pages |
|---|---|---|---|
| A. | Impartial Hearing Request | 5/25/2023 | 6 |
| B. | Ten-Day Notice | 8/22/2022 | 2 |
| C. | Individualized Education Program | 12/08/2021 | 23 |
| D. | Individualized Education Program | 11/16/2022 | 24 |
| E. | Psychological/Educational Evaluation | 4/25/2017 | 4 |
| F. | Occupational Therapy Evaluation | 4/17/2018 | 9 |
| G. | Assistive Technology Assessment | 11/22/2021 | 4 |
| H. | Neuropsychological Evaluation | July 2020 | 18 |
| I. | Neuropsychological Evaluation | June 2022 | 11 |
| J. | Private School Contract | 2022-2023 | 15 |
| K. | Tuition Affidavit | 8/29/2022 | 1 |
| L. | Private School Program Description | 2022-2023 | 1 |
| M. | Class Schedule | 2022-2023 | 1 |
| N. | Mid-Year Report Card | January 2023 | 12 |
| O. | End-of-Year Report Card | June 2023 | 10 |
| P. | Affidavit of the CSE Liaison at the Private School | 9/15/2023 | 5 |
| Q. | Affidavit of Parent 1 | 9/21/2023 | 5 |
DOE EXHIBITS
None
IHO EXHIBITS
None
Footnotes
[1] Exhibits will be referred to as “Ex.” followed by lettered designations for Parents’ Exhibits, numbered designations for DOE’s Exhibits, and uppercase roman numeral designations for Impartial Hearing Officer’s Exhibits. Exhibit designations will be followed by the page numbers as needed and appropriate. For example, Parents’ Exhibit A, page 1, will be referred to as (Ex. A-1). Transcripts of the Pre-Hearing Conference and the Due Process Hearing will be referred to as “PHC Tr.” and “DPH Tr.” followed by the page number(s) within the transcript as needed.
[2] Ex. A; Ex. C; Ex. D.
[3] Ex. A. While the DPC is dated May 25, 2023, it was not filed until July 25, 2023. In addition, I find that all of Parents’ claims can be resolved under the IDEA, and claims brought pursuant to Section 504 are otherwise subsumed.
[4] Ex. A-5.
[5] Ex. A-4.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] Ex. A-4-5.
[12] Ex. A-5.
[13] Id.
[14] Id.
[15] Id.
[16] Id.
[17] Id.
[18] Id.
[19] PHC Tr. 1-26.
[20] DPH Tr. 34-35.
[21] DPH Tr. 32, 40-41.
[22] DPH Tr. 35.
[23] DPH Tr. 34-40. A detailed list of the admitted exhibits is attached to this decision as Appendix A, “Exhibits Entered Into the Record.”
[24] DPH Tr. 44-48.
[25] DPH Tr. 49-52.
[26] DPH Tr. 53-58.
[27] DPH Tr. 53.
[28] DPH Tr. 54.
[29] DPH Tr. 54-57.
[30] DPH Tr. 57-58.
[31] Ex. P; Ex. Q.
[32] Ex. C; Ex. D.
[33] Ex. Q-1. Ex. E. While the Psychological/Educational Evaluation is dated April 25, 2017, the contents of the evaluation report support a finding that the evaluation occurred in April of 2018 and the report is dated incorrectly.
[34] Ex. Q-2.
[35] Id.
[36] Id; Ex. H.
[37] Ex. H-10-11.
[38] Ex. Q-3.
[39] Id; Ex. C.
[40] Ex. C-15-16.
[41] Ex. C; Ex. Q-3.
[42] Ex. I.
[43] Ex. I-2.
[44] Id.
[45] Ex. I-2-3.
[46] Ex. B.
[47] Id.
[48] Ex. Q-4.
[49] Ex. D-15.
[50] Ex. Q-4; Ex. D-22-23.
[51] Ex. J.
[52] Id.
[53] Ex. K-1.
[54] Id.
[55] Ex. P-1.
[56] Ex. K-1; Ex. L-1.
[57] Ex. P-1.
[58] Id.
[59] Id.
[60] Id.
[61] Ex. P-2.
[62] Id.
[63] Ex. M-1.
[64] Ex. P-2.
[65] Ex. P; DPH Tr. 44-48.
[66] Ex. P-3.
[67] Ex. P-2.
[68] Ex. P-3.
[69] Id.
[70] Id.
[71] Ex. N-1.
[72] Ex. O-1.
[73] Ex. P-3.
[74] Id.
[75] Id.
[76] Id.
[77] Ex. N-2.
[78] Ex. O-2.
[79] Ex. P-3.
[80] Id.
[81] Ex. O-3.
[82] Ex. P-4.
[83] Id.
[84] Id.
[85] Id.
[86] Id.
[87] Id.
[88] Id.
[89] Ex. A.
[90] Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 376 (2d Cir. 2014) (quoting Reyes ex rel. R.P. v. New York City Dep’t of Educ., 760 F.3d 211, 215 (2d Cir. 2014)).
[91] 20 U.S.C. § 1415(b)(6)(A).
[92] Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 367 (1985); Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12-15 (1993).
[93] NY Educ. Law § 4404(1)(c)).
[94] 20 U.S.C. § 1412 (a)(1)(A); Education Law §§ 4402(2)(a), (b)(2).
[95] 34 C.F.R. §300.13.
[96] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
[97] Oberti v. Board of Educ., 995 F.2d 1204 (3rd Cir. 1993).
[98] 20 U.S.C. §1415 (f)(3)(E)(ii); 34 C.F.R. §300.513(a)(2).
[99] Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017).
[100] Cerra, 427 F.3d at 195, quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998).
[101] Endrew F.,137 S.Ct. 988, 999.
[102] 34 C.F.R. §300.324(b)(1)(i); 8 N.Y.C.R.R. §200.4(e)(1)(ii); Davis v. Wappingers Cent. Sch. Dist., 772 F. Supp. 2d 500, 508 (S.D.N.Y. 2010).
[103] 34 C.F.R. § 300.320(a)(1); 8 N.Y.C.R.R. 200.4(d)(2)(i); Tarlowe v. Dep't of Educ., 2008 WL 2736027, at 6 (S.D.N.Y. July 3, 2008).
[104] 34 C.F.R. § 300.320(a)(4); 8 N.Y.C.R.R. 200.4(d)(2)(v).
[105] See 8 N.Y.C.R.R. 200.4(e)(7); Application of a Child with a Disability, Appeal No. 08-087.
[106] J.L. v. New York City Dep't of Educ., 324 F. Supp. 3d 455, 467 (S.D.N.Y. 2018); Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 (5th Cir. 2000); Davis v. Wappingers Cent. Sch. Dist., 431 Fed. App. 12, 14 (2d Cir. 2011).
[107] Ex. A.
[108] Id.
[109] Id.
[110] DPH Tr. 32.
[111] DPH Tr. 34-35, 40-41.
[112] Endrew F., 137 S.Ct. at 1002.
[113] Ex. A; Ex. D; Ex. I.; Ex. Q.
[114] Id.
[115] Id.
[116] Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006); Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007).
[117] Frank G., 459 F.3d at 364-65; T.K. v. New York City Dept. of Educ., 810 F.3d 869, 878 (2d Cir. 2016); M.S. v. Yonkers Bd. of Educ., 231 F.3d 96, 105 (2d Cir. 2000).
[118] Frank G., 459 F.3d 356, 364; Gagliardo, 489 F.3d 105, 112.
[119] Gagliardo, 489 F.3d at 112.
[120] Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d 356, 364.
[121] 20 U.S.C. § 1401(29); Educ. Law § 4401(1); 34 C.F.R 300.39(a)(1); 8 N.Y.C.R.R. 200.1(ww); Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 (2d Cir. 2014).
[122] Frank G., 459 F.3d at 364; See Gagliardo, 489 F.3d at 112.
[123] Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370.
[124] Gagliardo, 489 F.3d 105, 112,115; Walczak142 F.3d 119.
[125] DPH Tr. 53.
[126] Frank G., 459 F.3d at 365 (citing 20 U.S.C. § 1401(29)).
[127] Ex. P-3-4.
[128] Ex. P-3.
[129] Id.
[130] Frank G., 459 F.3d at 364.
[131] Ex. P-1.
[132] Id.
[133] Id.
[134] Frank G., 459 F.3d at 365 (citing Knable, 238 F.3d at 768).
[135] Weaver v. Millbrook Cent. Sch. Dist., 812 F. Supp. 2d 514, 523 (S.D.N.Y. 2011).
[136] Ex. P; Ex. N; Ex. O; Ex. Q.
[137] Ex. N-1.
[138] Ex. O-1.
[139] Ex. P-3.
[140] Ex. N-2.
[141] Ex. O-2.
[142] Ex. P-4.
[143] Id.
[144] Id.
[145] Id.
[146] Id.
[147] Frank G., 459 F.3d at 364.
[148] See Carter, 510 U.S. at 16.
[149] J.S. v. Scarsdale Union Free Sch. Dist., 826 F.Supp.2d 635, 671 (S.D.N.Y. 2011).
[150] Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246-47 (2009).
[151] Bettinger v. New York City Bd. Of Educ., 2007 WL 4208560, at *6 (S.D.N.Y. Nov. 20, 2007).
[152] D.A. v. New York City Dep’t of Educ., 769 F. Supp. 2d 403, 419-20 (S.D.N.Y. 2011).
[153] E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014).
[154] Ex. C; Ex. D; Ex. Q.
[155] M.H. v. N.Y.C. Dep’t of Educ., 685 F.3d 217, 254 (2d Cir. 2012).
[156] Ex. C-23; Ex. D-23-24.
[157] 34 C.F.R. § 300.148(d)(1)(ii); Ex. B.
[158] Ex. D; Ex. Q.
[159] Florence Cnty. Sch. Dist. Four v. Carter, 510 U.S. 7, 16, 114 S. Ct. 361 (1993); see also J.S. v. Scarsdale Union Free Sch. Dist., 826 F.Supp.2d 635, 671 (S.D.N.Y. 2011) (“[T]his Court has broad discretion to consider the range of all relevant facts in determining whether and to what extent awarding relief is equitable.”).
[160] Ex. J.
[161] Ex. K.
[162] Donald B. by Christine B. v. Board of Sch. Commissioners of Mobile County, Ala., 117 F.3d 1371, 1374 (11th Cir 1997) (citations omitted).
[163] Id. at 1375 (internal citations omitted).
[164] NYS Educ. Law §§ 4401(1); 4402(4)(a); See also NYS Educ. Law § 4401(2); 8 NYCRR § 200.1(ww).
[165] Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ., 790 F.2d 1153, 1160 (5th Cir. 1986).
[166] “Special Transportation for Students with Disabilities,” VESID Mem. [Mar. 2005], available at http://www.p12.nysed.gov/specialed/publications/policy/specialtrans.pdf).
[167] See Donald B., 117 F.3d at 1375.
[168] Ex. A-5.
[169] DPH Tr. 51.
[170] DPH Tr. 51-52.