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FINDINGS OF FACT AND DECISION
| Case Number: | 252724 |
| Student’s Name: | REDACTED |
| Date of Birth: | REDACTED |
| School Service District: | REDACTED |
| Impartial Hearing Officer: | Eryn DeFontes, Esq. |
| Date of Filing: | August 21, 2023 |
| Hearing Requested by: | Parent |
| Date of Hearing: | October 19, 2023 |
| Record Close Date: | November 3, 2023 |
| Date of Decision: | November 3, 2023 |
| Time Sensitive: | YES |
NAMES AND TITLES OF PERSONS WHO APPEARED:
October 19, 2023
For the Student:
Parent’s Attorney
Parent/Guardian
For the Department of Education (DOE or District):
DOE Representative
BACKGROUND and PROCEDURAL HISTORY
This matter concerns a REDACTED-year-old Student, classified as a Student with a Disability under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq.[1] Student currently attends the Private School. The Parent filed a due process complaint (DPC) on August 21, 2023, alleging inter alia, that the DOE failed to provide Student with a free and appropriate public education (FAPE) for the 2022-2023, 2023-2024 school years (SYs) and requesting relief in the form of funding of tuition reimbursement for the Student’s enrollment at the Private School for said SYs.[2]
A hearing on the merits was held on October 19, 2023. The Parent proffered exhibits A-S, which were admitted into the record with no objection from the DOE. The DOE conceded denial of FAPE for the SYs at issue[3] and took no position regarding the appropriateness of Parents’ placement or equities.[4] The undersigned IHO now renders this Findings of Fact and Decision upon review of all testimony and documentary evidence admitted to the record.
JURISDICTION
A decision in this matter is being rendered pursuant to the IDEA and its implementing regulations in addition to the New York State Education Law and its implementing regulations, in addition to Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794 (Section 504).[5]
LEGAL FRAMEWORK
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) and is further defined as “educational instruction that is designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction.”[6] 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.”[7]
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.[8] These three conditions constitute the Burlington/Carter framework employed in tuition reimbursement cases.
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.[9] The standard required is a preponderance of the evidence.[10]
FINDINGS OF FACT
Burlington/Carter Prong I: Failure to Provide a FAPE
A FAPE is offered to a student when: (a) the DOE complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA’s procedures, is reasonably calculated to enable the student to receive educational benefits.[11]
In this case, the DOE conceded that it denied the Student a FAPE for the SYs at issue.[12] 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 establishes that the DOE denied the Student a FAPE by failing to develop an appropriate program and placement for the Student for the 2021-2022 school year.[13] Therefore, Prong I of the Burlington/Carter framework is satisfied.
Burlington/Carter Prong II: Appropriateness of the Parents’ Unilateral Placement
When a parent unilaterally places their child in a private program and seeks funding and/or reimbursement for that program, they must demonstrate the program they have selected is appropriate to meet their child’s needs.[14] Parents are not barred from an award of tuition reimbursement or funding even if the private program does not meet the IDEA definition of a FAPE. The selected program need not employ certified special education teachers or develop its own IEP for the student, and parents’ selection of a program that the state has not approved does not bar reimbursement.[15] Parents need not show that a private placement provides every special service necessary to maximize their child’s potential, but only that it is likely to produce progress and not regression and provides “educational instruction specially designed to meet the unique needs of the . . . child, supported by such services as are necessary to permit the child to benefit from instruction.”[16]
The Student, in this case, is currently enrolled at the Private School. The Parent submitted ample evidence establishing that the Private School is an appropriate placement that provides the Student with educational instruction specifically designed to meet the Student’s unique educational needs, supported by services that are necessary to permit the Student to benefit from that instruction. The Private School Director testified, [Student] was placed into the 6:1:2 classroom. He was born with a congenital heart defect called REDACTED (REDACTED)[17] [and] has had multiple heart surgeries, a portion of his lung removed, and many extended hospitalizations. He is small for his age in height and weight, has hypotonia, and wears glasses. In addition to his medical and health needs, Student has global deficits that impact his ability to navigate the classroom environment, sustain attention, and independently participate in all classroom activities. He has deficits in articulation, receptive and expressive language, sensory motor skills as well as social emotional development. Furthermore, self-directed and repetitive interests and behaviors significantly impact his academic and social functioning throughout the school day.[18]
A Neurodevelopmental evaluation performed on the Student states in part:
[Student] has a history of developmental and language delays and requires intensive remediation in order to make expected academic and developmental gains. Accordingly, going into Kindergarten, he requires placement in a small and structured, special education school environment, with a low student to teacher ratio, geared toward students with developmental delays and language-based learning disabilities.[19]
Related services, including speech, physical, and occupational therapies, should be provided throughout the school day and should be integrated into Student’s classroom routine. A combination of pull-out and push-in services are also recommended, in order to assist Student in generalizing the skills into his daily routine.[20]
The evidence credibly describes the Private School as:
[An] early childhood, developmental, therapeutic program designed to meet the diverse needs of children with language-based and non-verbal disabilities.[21]
This developmental, therapeutic, and educational program will comprehensively integrate skill development in the areas of speech and language, play, social-emotional development, motor and sensory development, executive functioning, independence, master of life skills. Therapeutic services include [occupational therapy] OT, Speech and Counseling and will be provided by NYS licensed therapists.[22]
Accordingly, the uncontroverted evidence supports a finding that the Private School is the appropriate placement for the Student for the school years at issue. This conclusion is substantiated by Student’s documented progress:
[Student] has developed strong relationships with his teachers, begun to develop connections with preferred peers, and has learned many classroom routines. Student has shown increased independence throughout the day and is requiring less frequent reminders to complete transitions and clean-up routines than he has needed previously.[23]
[Student] has made progress in producing sounds in isolation and in following one-step novel directions with early linguistic concepts and use of pronouns.[24]
Based upon the foregoing, the undersigned IHO finds that the Private School is an appropriate placement for the Student for the school years at issue, as the Private School addresses the Student’s needs in an individualized manner and provides the Student with the necessary services to enable the Student to make progress. Therefore, Parent has met the second prong of the Burlington/Carter framework for tuition funding and/or reimbursement.
Burlington/Carter Prong III: Equitable Considerations
When considering an award of tuition reimbursement, an IHO must also determine whether a balancing of the equities support the award, as “equitable considerations [relating to the reasonableness of the action taken by the parents] are relevant in fashioning relief.”[25] When a school district fails to provide a student with a FAPE and the private placement is found to be appropriate, “the district court enjoys broad discretion in considering equitable factors relevant to fashioning relief.”[26] Direct and prospective funding are appropriate remedies in due process proceedings seeking payment for unilateral placements.[27]
The hearing record establishes that the Parent provided the DOE with the requisite statutory notice[28] and incurred an obligation to pay tuition in the amount of $88,000 for the 2022-2023 academic school year, and $117,167 for the 2023-2024 academic school year. The tuition rates are evidenced in the enrollment contracts and tuition statements.[29] The Parent testified and the submitted credible evidence demonstrate payments in full for both SYs.[30] The Parent further provided unrefuted testimony to establish that they cooperated with the DOE.[31] Accordingly, the undersigned finds that the equities favor the Parent pursuant to prong III of the Burlington/Carter framework.
Attorney’s Fees
The DPC includes a claim for attorneys’ fees.[32] The IDEA does not authorize an administrative officer to award attorneys’ fees or other costs to a prevailing party, and entitlement, if any, to costs must be determined by a court of competent jurisdiction.[33]
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 attorneys’ fees and costs from this IHO, such request is denied.
CONCLUSION
The DOE failed to provide the Student with a FAPE for the 2022-2023, 2023-2024 SYs. The Private School is an appropriate placement for the Student for the SYs at issue, and the Student is thereby entitled to tuition funding and/or reimbursement.
ORDER
Based on the foregoing, it is hereby:
1. ORDERED that the DOE shall, within thirty (30) days of this Order and upon proof of payment, reimburse the Parent for monies paid to the Private School for the Student’s tuition at the Private School for the 2022-2023 school year in an amount not to exceed $88,000; and
2. IT IS FURTHER ORDERED that the DOE shall, within thirty (30) days of this Order and upon proof of payment, reimburse the Parent for monies paid to the Private School for the Student’s tuition at the Private School for the 2023-2024 school year in an amount not to exceed $117,167.
SO ORDERED.
DATED: November 3, 2023
ErynDeFontes
Impartial Hearing Officer
Eryn DeFontes, Esq.
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, 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.
ADMITTED EXHIBITS
DOE Exhibits:
| Exhibit Number | Description | Date | No. of Pages |
|---|---|---|---|
| 1 | IEP | 4/1/22 | 28 |
| 2 | Prior Written Notice | 5/18/22 | 11 |
| 3 | Prior Written Notice | 6/15/22 | 5 |
| 4 | Social History Report | 3/11/22 | 2 |
| 5 | Physical Therapy Progress Report | 12/15/2021 | 3 |
| 6 | Speech Therapy Progress Report | 7/12/2021 | 5 |
| 7 | Occupational Therapy Progress Report | 12/17/2021 | 7 |
Parent’s Exhibits:
| Ex. | Description | Date | Pages |
|---|---|---|---|
| A | Due Process Complaint | August 21, 2023 | 5 |
| B | Neurodevelopmental Evaluation | February 8, 2022 | 13 |
| C | Turning Five Progress Reports | December 2021 – January 2022 | 13 |
| D | Enrollment Contract | July 11 + 12, 2022 | 2 |
| E | Notice of Unilateral Placement | August 22, 2022 | 2 |
| F | DOE Response to Exhibit E | September 13, 2022 | 2 |
| G | Tuition Statement | September 14, 2022 | 1 |
| H | Program Description (8:1+2) | 2022-2023 School Year | 2 |
| I | Schedule | 2022-2023 School Year | 1 |
| J | Notice of Unilateral Placement | June 20, 2023 | 2 |
| K | DOE Response to Exhibit J | July 19, 2023 | 2 |
| L | Enrollment Contract | July 24, 2023 | 2 |
| M | Tuition Statement | August 9, 2023 | 1 |
| N | Schedule | 2023-2024 school year | 1 |
| O | Program Description (6:1+2) | 2023-2024 school year | 1 |
| P | Affidavit of PROGRAM DIRECTOR | October 4, 2023 | 7 |
| Q | Affidavit of PARENT | October 12, 2023 | 5 |
| R | Mid-Year Progress Report | January 2023 | 8 |
| S | End of Year Report | June 2023 | 4 |
Footnotes
[1] The Student’s classification is not in dispute.
[2] P-A-4; Tr. 31:16-19 (Parent’s claim for transportation funding was withdrawn).
[3] Tr. 32:19-21. The DOE, therefore, failed to set forth a case. The DOE waived opening statements and summations and declined to cross-examine Parents’ witnesses. Tr. 32, 33.
[4] Tr. 32:22-25; Tr. 33:1-6.
[5] 20 U.S.C. § 1400 et seq., 34 C.F.R. § 300 et seq., Educ. Law Art. 89 § 4404 et seq., 8 NYCRR § Part 200. Regulations implementing Section 504 in the context of educational institutions appear at 34 C.F.R. Part 104. However, as relief in the matter is available pursuant to the IDEA, any claims set forth pursuant to Section 504 are hereby subsumed by the IDEA and will not be addressed separately.
[6] See 34 C.F.R. § 300.13; Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
[7] Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. 386, (2017).
[8] 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).
[9] NYS Educ. Law § 4404(1)(c).
[10] 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).
[11] Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005).
[12] Tr. 32:19-21.
[13] See P-B through L.
[14] A.D. ex rel. E.D. v. Bd. of Educ. of City Sch. Dist. of New York, 690 F. Supp. 2d 193, 206 (S.D.N.Y. 2010) (citing Frank G. v. Bd. Of Educ. Of Hyde Park, 459 F.3d 356 at 364).
[15] Id. (citing Carter, 510 U.S. 7 at 14).
[16] Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007).
[17] P-Q-2.
[18] P-B-1, 7; P-P-1-4; P-R-1.
[19] P-B-8.
[20] Id. at 9.
[21] P-H-2.
[22] Id.; P-P-2-4. Student receives OT in three 30-minute individual sessions a week. Speech therapy is provided through individual sessions two times a week for 30 minutes, AND one 30-minute speech session in a group of two students. Counseling services are provided once a week, individually, for 30 minutes. All of the Student’s therapists hold NYS licenses.
[23] P-P-5, 6.
[24] Id. at 6; P-R-3; P-S.
[25] See, Frank G., 459 F.3d at 363-64; see also 20 U.S.C. § 1412(a)(10)(C)(iii).
[26] Gagliardo, 489 F. 3d 105 at 112, citing Carter, 510 U.S. 7 at 16.
[27] See, Connors v. Mills, 34 F.Supp.2d 795 at 805-806, 132 Ed. Law Rep. 767 (N.D.N.Y., 1998), Mr. & Mrs. A. ex rel. D.A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403 (S.D.N.Y. 2011).
[28] P-E; P-J.
[29] P-D; G; L; M.
[30] P-G; P-M-1; P-Q-5.
[31] P-Q-2, 3.
[32] P-A-4.
[33] 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).