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FINDINGS OF FACT AND DECISION
Case Number: 252691
Student’s Name: REDACTED [1]
School District: REDACTED
Impartial Hearing Officer: Eryn DeFontes, Esq.
Date of Filing: August 17, 2023
Hearing Requested by: Parent
Date of Hearing: October 20, 2023
Record Close Date: October 26, 2023
Date of Decision: October 26, 2023
Time Sensitive: YES
Appearances:
For the Parent
Parent’s Representative
Head of School, Private School (“Head of School”)
For the Department of Education (“DOE” or “District”)
DOE Representative
BACKGROUND AND PROCEDURAL HISTORY
The Parent, through counsel, filed a Due Process Complaint (DPC) on or about August 17, 2023. In the Request, the Parent alleges inter alia, that the Department of Education (DOE) failed to offer the student with a free appropriate public education (FAPE) for the 2023-2024 school year (SY).[2] By way of relief, Parent seeks an award of tuition funding and/or reimbursement for Student’s attendance at Private School for the 2023-2024 SY.[3] The undersigned Impartial Hearing Officer (IHO) was appointed on August 21, 2023. The parties appeared for a prehearing conference on September 20, 2023. On October 20, 2023, both parties appeared for a virtual hearing. The DOE conceded it had failed to offer the Student a FAPE for the SY at issue and indicated that it did not intend to put forth a prong 1 case, despite its burden to do so.[4] Parent submitted exhibits A-PP into the record on consent of the DOE. [5]
JURISDICTION
The instant decision is rendered pursuant to the IDEA Act, 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 Art. 89 § 4404 et seq., and its implementing regulations, 8 NYCRR § Part 200.
LEGAL FRAMEWORK
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.[6] A board of education may be required to pay for educational services obtained for a child by the child's parent, if (1) the services offered by the board of education were inadequate or inappropriate, (2) the services selected by the parent were appropriate, and (3) equitable considerations support the parent's claim.[7] These three conditions constitute the Burlington/Carter framework employed in tuition reimbursement cases. The standard required is a preponderance of the evidence. [8]
FINDINGS OF FACT AND DECISION
Burlington/Carter Prong I
The IDEA provides that children with disabilities are entitled to a FAPE.[9] 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). [10] 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. [11] In addition, 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.” [12]
The DOE conceded it had failed to offer the Student a FAPE for the SY at issue. Consequently, the Parent is entitled to a presumption as to the truth of the asserted facts underlying claims set forth in the documentary evidence and testimony, to the extent such facts are credible and not contradicted by the hearing record.
Accordingly, the credible, uncontroverted evidence and testimony establish that the DOE denied the Student a FAPE through its failure to develop an appropriate program and placement for SY at issue.[13] Prong I of the Burlington/Carter framework is thereby satisfied.
Burlington/Carter Prong II
Parents seeking funding and/or reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.”[14] "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement.'"[15] Parents need not show that the placement provides every special service necessary to maximize the student's potential.[16] When determining whether a unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether the placement is "reasonably calculated to enable the child to receive educational benefits."[17] A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student. [18]
Upon review of the instant hearing record, the weight of the evidence establishes that Student’s individual special education needs are addressed by the Private School and the instruction offered is "reasonably calculated to enable the child to receive educational benefits." [19]
For example, the Student is diagnosed with “Moderate Intellectual Developmental Disorder, Autism Spectrum Disorder and Developmental Disorder of Speech & Language”. [20] The Student further presents with “significant deficits on primary adaptive behavior domains and sub-domains…she has significant behavioral and emotional issues which are symptoms of her previously diagnosed Autism Spectrum Disorder.”[21] The Student’s psychological evaluation recommends “ABA therapy to address [Student’s] behavioral and sensory issues; intensive ABA class/school setting during the school day to learn and master pre-requisite skills, as well as opportunities with typically-developing peers to improve her communication abilities and social interactions.” [22]
In addition, the Head of School credibly testified that the Private School provides the Student with individualized instruction designed for the Student to make progress, including small classroom size, direct observation, applied behavior analysis (ABA) programming, and an ability to interact with other typically developing students outside of the Private School, via a partnership with neighboring schools. Lastly, the Private School provides the Student with related services consisting of: Occupational therapy (OT), Physical therapy (PT ) and speech language therapy (SLT).[23] Lastly, the evidence further demonstrates that the Student has made meaningful progress academically, socially, and across all related service domains. [24]
The undersigned finds the Parent’s witnesses and documentary evidence credible and convincing. Based upon the foregoing, Parent has met the second prong of the Burlington/Carter framework for tuition funding and/or reimbursement. The DOE presented no evidence or testimony to the contrary.
Burlington/Carter Prong III
Direct tuition funding is relief encompassed by the equitable remedial powers inherent in IDEA.[25] Should a parent establish a right to reimbursement under the IDEA, "courts retain discretion to reduce the amount of a reimbursement award if the equities so warrant."[26] In making that equitable determination, a hearing officer may consider factors such as, whether a parent’s unilateral withdrawal of a child from the public school was justified; whether the parent provided the Department with adequate notice of the withdrawal. [27]
There exists no evidence in the hearing record to suggest that the Parent failed to continually cooperate with the DOE. Rather, the testimony and evidence establish that the Parent attended IEP meetings, visited the proposed placement, and provided the DOE with timely notice of their intention to unilaterally place the Student at the Private School. [28] Lastly, the Parent incurred an obligation to pay the Student’s tuition for the SY at issue.[29] The total cost of tuition for the 2023-2024 12-month SY is $115,000, which exceeds the Parent’s yearly income.[30] Accordingly, the undersigned finds that the equities support Parent’s claim for both direct funding and reimbursement.
Transportation
The Parent requests the continuation of round-trip special transportation for the Student to and from the Private School.[31] The IDEA requires that a school district provide transportation for a child with a disability “if that service is necessary for a disabled child ‘to benefit from special education.”[32] The DOE did not object.
Attorney’s Fees
Parent included a notice of claim for attorney’s fees in the DPC.[33] The IDEA does not authorize an administrative officer to award attorney’s fees or other costs to a prevailing party, and entitlement, if any, to costs must be determined by a court of competent jurisdiction. [34] Therefore, the undersigned IHO would be exceeding the permissible scope of authority by determining that Parent is the prevailing party entitled to costs. To the extent that Parent seeks reimbursement and/or payment of attorney’s fees and costs from this IHO, such request is denied.
CONCLUSION
The DOE denied the Student FAPE for the 2023-2024 SY; the Private School is appropriate, as it offers Student with specially designed instruction to meet Student’s needs; the Student is entitled to continued transportation; the student is entitled to a 12-month SY; the equities support the Parent’s requested relief.
ORDER
Based upon the foregoing, it is hereby:
ORDERED that within thirty (30) days of this Order and upon submission of proof of enrollment, the DOE shall directly fund the Student’s tuition at the Private School in an amount not to exceed $115,000, minus any monies paid by Parent for the 2023-2024 12-month SY.
IT IS FURTHER ORDERED that within thirty (30) days of this Order and upon submission of proof of payment, the DOE shall reimburse Parent for monies paid towards Student’s tuition at the Private School for the 2023-2024 12-month SY.
IT IS FURTHER ORDERED that the DOE shall continue to provide the Student with round-trip transportation during the 2023-2024 SY.
SO ORDERED.
Dated: October 26, 2023
Eryn DeFontes
Eryn DeFontes, 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.
District’s Exhibits
None
Parent’s Exhibits
PA 8/17/23 Parent’s Due Process Complaint and Completed Pendency Form 8
PB 5/18/22 Article 16 Clinic Psychological Evaluation 5
PC 4/6/23 Private School Annual Report - Education 10
PD 6/16/23 Private School Quarterly Report – Education 5
PE 8/4/23 Private School Summer Report – Education 6
PF 10/10/23 Private School Report by Head Teacher 3
PG 4/18/23 Private School Quarterly Report – Speech Therapy 5
PH 4/7/23 Private School Annual Report – Occupational Therapy 3
PI 4/7/23 Private School Annual Report – Physical Therapy 3
PJ 6/20/23 Parent’s 10-Day Notice with Receipt 4
PK 2022-2023 School Year Private School Enrollment Contract 15
PL 10/5/23 Private School Tuition Affidavit 1
PM Undated Curriculum Vitae of Head of School, PhD, BCBA-D, LBA, SBL 9
PN 10/12/23 Notarized Affidavit of Grandmother 6
PO 2023-2024 School Year Private School Attendance Sheet 1
PP 2023-2024 School Year Private School Class Schedule 1
IHO Exhibits
i Pendency Agreement 10/12/23 2pp
Footnotes
[1] See Appendix for Identifying information.
[2] P-A-4
[3] Id.; IHO I (Pendency agreement was executed by a DOE representative on October 12, 2023, and therefore not at issue).
[4] Tr. 21:1-6.
[5] Tr. 25:19-22.
[6] NYS Educ. Law § 4404(1)(c).
[7] See, 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).
[8] 20 U.S.C. §1415(i)(2)(C)(iii); see also Walczak v. Florida Union Free Sch. Dist., 142 F.3rd 119 (2nd Cir. 1998).
[9] 20 U.S.C. § 1400 (d)(1)(A)
[10] 34 C.F.R. § 300.13
[11] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
[12] Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017).
[13] See P-B through PP. Student’s classification, eligibility for a 12-month SY and transportation are not in dispute.
[14] See, Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112, 115 (2d Cir. 2007); Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 112, 119, 129 (2d Cir. 1998).
[15] Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006).
[16] Frank G., 459 F.3d at 364-65.
[17] Id.
[18] 20 U.S.C. § 1401(29); Educ. Law § 4401(1); 34 CFR 300.39(a)(1); 8 NYCRR 200.1(ww); Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 (2d Cir. 2014).
[19] Frank G., 459 F.3d at 364.
[20] P-B-1.
[21] Id. at 5.
[22] Id.; P-0; P-P.
[23] Tr. 36, 37; 48, 49:1-4; P-G; P-H; P-I.
[24] Tr. 46:19-25; P-D; P-E-2-4; P-G-2; P-H; P-N-4, 5.
[25] See e.g. Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 406 (S.D.N.Y. 2011) (parents may seek direct funding in the instance in which, “due to a lack of financial resources, [parents of a student with a disability] have not made tuition payments but are legally obligated to do so”).
[26] Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246-47, 129 S. Ct. 2484, 174 L. Ed. 2d 168 (2009).
[27] See, E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014); see also, 34 CFR 300.148(d)(1).
[28] P-J; P-N.
[29] P-K-8; P-L; P-N.
[30] P-L; P-N.
[31] P-A; Tr. 56:23-25.
[32] Donald B., 117 F.3d 1371, 1374.
[33] P-A-4, 5.
[34] See 20 U.S.C. § 1415(i)(3)(B); Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 402 F.3d 332 (2d Cir. 2005); see also Application of a Student with a Disability, Appeal No. 08-008 (March 31, 2008); Application of a Child with a Disability, Appeal No. 06-109 (Oct. 27, 2006).