Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

IHRS or NYC Case Number: 254352

School District: NYC School District

Impartial Hearing Officer: Philip P. Sturges

Request Date/Date Complaint: September 5, 2023

Filed/Date of Decision: November 30, 2023

Date of Distribution, if Different than Decision Date: n/a

INTRODUCTION

The Parent, through counsel, filed a Due Process Complaint (DPC) on or about September 5, 2023. In the DPC, the Parent alleged that the New York City Department of Education (DOE) failed to offer the Student a free appropriate public education (FAPE) for the 2023-2024 school year. (Ex. A)

The Parent alleged as follows: The Committee on Special Education (CSE) met on May 24, 2023 to develop an individualized educational program (IEP) for the Student for the 2023-2024 school year. The IEP meeting was not conducted with a Spanish interpreter. During the meeting there were technical issues, and the Parent was disconnected from the call several times, but the IEP team proceeded with the meeting without her. The Parent expressed her concerns with the Student’s speech and requested additional speech/language therapy (S/L), but the DOE claimed S/L could not be increased without further assessments, without informing the Parent about the process for obtaining a speech evaluation. The May 24, 2023 IEP changed the Student’s placement from a 6:1:3 at a non-public school (NPS) to a 6:1:1 in a District 75 school. At the IEP meeting the Parent stated she wanted to keep the Student in the program where he was making progress and did not understand the change in the Student’s program until the IEP was verbally translated for her. The Parent never received a school location letter (SLL). On August 23, 2023, the Parent, through her attorney, notified the DOE of her decision to keep the Student at the NPS for the 2023-2024 school year based on the failure of the DOE to provide an appropriate IEP or a school placement. By way of relief, the Parent seeks an award of prospective payment and reimbursement of tuition for the Student’s placement at the NPS for the 2023-2024 school year, prospective payment and reimbursement for door-to-door roundtrip transportation to and from such placement for the 2023-2024 school year, and a change to the Student’s IEP noting a non-public school placement.^[1] (Ex. A)

PROCEDURAL HISTORY

I was appointed on September 7, 2023. On October 5, 2023, the Parent Representative appeared for a pre-hearing conference. The DOE failed to appear. On October 17, 2023, the Parent Representative appeared for a pendency hearing. The DOE failed to appear. At that time, the Parent moved for an extension of the compliance period, which I granted. (IHO Ex. I) On October 17, 2023 I so ordered the Parent’s pendency implementation form. (IHO Ex. II) The due process hearing in this matter was scheduled for November 14, 2023, with disclosures and witness lists due November 3, 2023. The DOE did not submit any disclosures or witness list by the deadline. The Parent Representative appeared for the November 14, 2023 hearing, but the DOE Representative failed to appear for the hearing. (IHO Exs. III & IV) The Parent submitted 15 exhibits into the record. Included in the Parent’s evidence was a witness affidavit from the NPS Clinical Coordinator. (Ex. N) The Parent Representative made an oral closing (See November 14, 2023 Transcript).

FINDINGS OF FACT AND DECISION

After a full review of the record generated at hearing, I make the following findings of fact and determinations.

The NPS Clinical Coordinator testified credibly as follows. She holds a master’s degree in early childhood education, childhood education, and special education, and has also completed coursework in a school building leadership program. She has been employed as the Clinical Coordinator at the NPS for 17 years, with duties that include oversight of classrooms, working with students and parents, working with the DOE to create goals and IEPs, and creating student progress reports. (NPS Clinical Coordinator Aff. at ¶¶ 1-2). The NPS Clinical Coordinator’s teaching qualifications include professional certification in birth-two and grades 1-6, and she has worked in education for children with autism for 23 years. (Id. at ¶ 3). The NPS is a New York State (NYS) approved non-public school day program in which children diagnosed with autism spectrum disorder (ASD) receive educational and vocational training. The NPS utilizes the principals and procedures of applied behavioral analysis (ABA) to improve deficit areas and decrease maladaptive behaviors. (Id. at ¶¶ 4-5). The NPS services both preschool children and school age children ages 5-21, with programming that includes S/L, independent tasks, activities of daily living (ADL), and vocational tasks. The students who attend the NPS are exposed to a wide variety of procedures that fall under the ABA umbrella, including skill assessment, behavioral measurement/analysis, reinforcement, discrete trial teaching, prompting, chaining, shaping, and prompt-fading. (Id. at ¶¶ 6-7). S/L providers are on staff to meet student mandates, however the NPS does not provide occupational therapy (OT) or physical therapy (PT) as separate mandates. Fine and gross motor skills are worked on throughout the day to target goals. Families are encouraged to participate in parent training and observations throughout the school year, and home visits are offered as well. (Id. at ¶ 8). The NPS does not have a contract with the Parent for payment, because tuition is funded through the NPS’s contract with DOE. For the 2023-2024 school year, the summer tuition program for preschool students is $7,446, and the 10-month school-age tuition program is $58,563. (Id. at ¶ 9)

The NPS Clinical Coordinator has known the Student since June 2022, when he was sent to the NPS Preschool by the Committee on Preschool Special Education (CPSE) because he was having difficulty in his previous placement and was displaying aggression and maladaptive behaviors. The Student is a student with a disability classification of Autism and was first enrolled at the NPS in June 2022 by the CPSE after a determination that his prior placement was not suitable for his needs. (Id. at ¶ 10) The Student is currently enrolled in the school-age program at the NPS and receives S/L and parent training. (Id. at ¶ 11). The Student’s early childhood 3 class schedule includes arrival, group, reading/writing, math, lunch, recess, gym, science/social studies, art, and packing/dismissal. (Id. at ¶ 12). The Student is currently working on programming in areas of learning including receptive and expressive communication, reading and reading comprehension, mathematics, science and social studies, independent work, ADL, and appropriate behavior. The Student is working toward his individual and programmatic goals, and the NPS aids in meeting these goals by reinforcement, prompting, prompt-fading, shaping, and withholding reinforcement to decrease undesired behaviors. (Id. at ¶ 13). The NPS has been able to accommodate the Student’s significant needs. The Student’s goals are uniquely tailored to meet his educational and behavioral needs. The Student has made consistent progress at the NPS and continues to succeed in his current placement. Based on her knowledge of the Student’s special education needs and aims, the NPS is an appropriate placement for the 2023-2024 school year. (Id. at ¶¶ 14-15).

The IDEA provides that children with disabilities are entitled to a FAPE. See 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 IEP. See 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. See 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). A school district must be able to “offer a cogent and responsive explanation for their decisions” in creating that IEP, and 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.” Id.

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. See NYS Educ. Law § 4404(1)(c).

As to Prong I of the Burlington/Carter standard, the DOE failed to meet its burden, submitting no evidence, and failing to appear for the hearing. I therefore find that the DOE failed to establish that it offered the Student a FAPE for 2023-2024 school year. Moreover, a review of the Parent’s evidence further supports the conclusion that the DOE failed to offer the Student an educational program reasonably calculated to offer a FAPE for 2023-2024 school year. I credit the assertion in the Parent’s DPC that the DOE failed to provide the Parent with a SLL or provide the Student with a school placement for the 2023-2024 school year, denying him a FAPE. (Ex. A) As the SRO has found, allegations that are left unchallenged are deemed as true “unless found to be inconsistent with the evidence in the record.”^[2] Here the DOE failed to appear at the hearing to challenge the Parent’s assertions, and I find that the failure of the DOE to offer the Student a school placement for the 2023-2024 school year is consistent with the evidence in the record.

A private school placement must be "proper under the Act." Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12, 15 (1993); Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 370 (1985). This means that the private school must offer an educational program which met the student's special education needs. 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 119, 129 (2d Cir. 1998). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate." Gagliardo, 489 F.3d at 112. 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." Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006).

Parents need not show that the placement provides every special service necessary to maximize the student's potential. Frank G., 459 F.3d at 364-65. 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." Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115. A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student. 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).

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement. 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.

Here the Parent sought an educational program to address the Student’s diagnosis of Autism and placed him in the NPS for kindergarten for the 2023-2024 school year, the same placement where he had attended preschool based on the recommendation of the CPSE. (NPS Clinical Coordinator Aff. at ¶ 10). I credit the testimony of the NPS Clinical Coordinator that the NPS has provided the Student with an educational program with goals that are uniquely tailored to meet and accommodate his educational and behavioral needs. I also credit that the Student has made consistent progress at the NPS and continues to succeed in his current placement, and that as a result, the NPS is an appropriate placement for the Student for the 2023-2024 school year. (Id. at ¶¶ 14-15).

In reviewing the NPS Clinical Coordinator’s affidavit (Ex. N), the weight of the evidence establishes that the Student’s individual special education needs were addressed by the NPS, and that the instruction offered was "reasonably calculated to enable the child to receive educational benefits." Frank G., 459 F.3d at 364. I note that the DOE failed to appear at the hearing to offer any arguments concerning the appropriateness of the Parent’s unilateral placement. Under these circumstances, I find that the Parent’s witness and evidence are credible and that the Parent has met her burden in proving that the NPS offered an educational program which met the Student’s need under Prong II of the Burlington/Carter standard.

Turning to Prong III of the Burlington/Carter standard, 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." Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246-47, 129 S. Ct. 2484, 174 L. Ed. 2d 168 (2009). In making that equitable determination, the district court may consider many factors, including, inter alia, whether plaintiff's unilateral withdrawal of her child from the public school was justified, whether plaintiff provided the DOE with adequate notice of the withdrawal, whether the amount of private-school tuition was reasonable, whether plaintiff should have availed herself of need-based scholarships or other financial aid from the private school, and whether there was any fraud or collusion in generating (or inflating) the tuition to be charged to the DOE, or whether the arrangement with the school was fraudulent or collusive in any other respect. E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014).

Here, the Parent sent a timely ten day notice (TDN) on August 23, 2023, notifying the CSE that the May 24, 2023 IEP created for the Student lacked sufficient evaluative data and that the recommended 6:1:1 program in a DOE specialized school with related services was insufficient to meet the Student’s significant needs. The TDN also informed the CSE that the Parent never received a SLL for the 2023-2024 school year, and that she intended to unilaterally keep the Student placed at the NPS for the 2023-2024 school year and was seeking a non-public school placement recommendation on his IEP. (Ex. B) I find no issue with the reasonableness of the costs, including tuition, associated with the NPS. (Ex. O) The Student is attending the NPS for the school year at issue. (NPS Clinical Coordinator Aff. at ¶ 11). I find that the weight of the evidence establishes that the Parent cooperated with the DOE and its CSE’s efforts to develop an IEP and recommend a program and placement for the 2023-2024 school year. (Ex. B) Overall and after considering the record at hearing, I find that the equities support the Parent’s claim for full tuition funding.

By way of relief, the Parent seeks to have the unpaid balance of the 12-month 2023-2024 tuition of $58,563 sent directly to the NPS. (T p. 35 L 2-5; Ex. O). Direct tuition funding is relief encompassed by the equitable remedial powers inherent in IDEA. 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) Pursuant to the testimony of the NPS Clinical Coordinator, the NPS does not have a contract with the Parent for payment, because tuition is funded through the NPS’s contract with DOE. (NPS Clinical Coordinator Aff. at ¶ 9) I also note the recent decision from the Southern District of New York finding that it would be inequitable to require a parent to establish financial hardship to seek direct retrospective payment of tuition after a school district failed to provide the student with a FAPE, because such a burden would contradict the IDEA’s core purpose of “ensur[ing] that all children with disabilities have available to them a free appropriate public education[.]” Cohen v. N.Y. Dep’t of Educ., 1:21-cv-06260-MKV, 2023 U.S. Dist. LEXIS 171815 (Sept. 26, 2023) (citing 20 USC § 1400(d)(1)(A) (emphasis in original). Accordingly, the record supports direct funding of the Student’s tuition at the NPS for the 2023-2024 school year.

The Student’s May 24, 2023 IEP recommends that the Student receive special transportation from the closest safe curb location to school because the Student is autistic and nonverbal. (Ex. M-25). Accordingly I find that the DOE must provide door-to-door special transportation from the closest safe curb to and from the NPS for the Student for the 12-month 2023-2024 school year. The DOE is also ordered to reimburse the Parent for any out-of-pocket expenses incurred in transporting the Student to and from the NPS during the 12-month 2023-2024 school year on days that the DOE failed to provide such special transportation.

Finally, I find that the CSE should reconvene within thirty (30) days from the date of this FOFD to amend the Student’s IEP to set forth the recommendation of a NYS approved non-public school placement for the 12-month 2023-2024 school year.

ORDER

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:

1. The Parent’s claim for direct tuition funding for the Student’s unilateral placement at the NPS is GRANTED for the full 12-month 2023-2024 school year as follows: The DOE shall, within thirty (30) days of receipt of this ORDER, directly fund the remaining unpaid balance of the Student’s tuition at the NPS in the amount of $58,563.00 for the 2023-2024 school year; and

2. The DOE shall provide the Student with door-to-door special transportation services to and from the NPS for the 12-month 2023-2024 school year, and promptly reimburse the Parent for any transportation costs incurred based on the failure of the DOE to provide special transportation services; and

3. The CSE, within thirty (30) days of receipt of this ORDER, will reconvene and amend the Student’s IEP to indicate the recommendation of a NYS approved non-public school placement for the Student for the 12-month 2023-2024 school year.

Dated: November 30, 2023

_Philip Sturges

Philip P. Sturges

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.

Footnotes

[1] A request for an independent bilingual speech evaluation was withdrawn without prejudice at the hearing.

[2] Appeal No. 01-044 (SRO March 27, 2002); see also SRO Appeal No. 12-006 at 8.