NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT AND DECISION
Case Number: 255443
Student’s Name: [REDACTED]
Date of Birth: [REDACTED]
School Service District: [REDACTED]
Impartial Hearing Officer: Eryn DeFontes, Esq.
Date of Filing: September 7, 2023
Hearing Requested by: Parent
Date of Hearing: November 8, 2023
Record Close Date: November 20, 2023
Date of Decision: November 20, 2023
NAMES AND TITLES OF PERSONS WHO APPEARED:
For the Student:
Parent’s Attorney
Parent/Guardian
Private School Principal
For the Department of Education:
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 The Parent filed a due process complaint (DPC) on, September 7, 2023, alleging inter alia, that the DOE failed to provide Student with a free and appropriate public education (FAPE) for the 2023-2024 school year (SY) and requesting relief in the form of direct and/or reimbursement funding of tuition for the Student’s enrollment at the Private School for the 2023-2024 SY. 2 The undersigned Impartial Hearing Officer (IHO) was appointed on September 11, 2023. A pre-hearing conference was held on October 4, 2023 and a hearing on the merits was held on November 8, 2023. The Parent proffered exhibits A-J, which were admitted into the record. [3]
The DOE conceded denial of FAPE for the school year at issue.[4] Although the DOE conceded denial of FAPE, the DOE representative proffered exhibits[1] and[2] yet declined to present a case or call witness.[5] The DOE cross-examined Parent’s witnesses. The undersigned IHO now renders this Findings of Fact and Decision upon review of all testimony and 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. [6]
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.”[7] 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.”[8] 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.[9] 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.[10] The standard required is a preponderance of the evidence. [11]
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. [12]
In this case, the DOE conceded that it denied the Student a FAPE for the school year. 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 through its failure to develop an appropriate program and placement for the Student for the SY at issue.[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 has not been approved by the state 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 not currently enrolled at the Private School, nor does the Student attend public school.[17] 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.
For example, the Student presents with “very persistent symptoms of ASD that clearly interfere with his ability to make progress”.[18] It is recommended that Student attend a 12-month small, structured school program designed for students with autism with continued related services and at least 15-20 hours per week of 1:1 Applied Behavior Analysis (ABA).[19] The credible evidence further describes the Private School as:
A small school approved by the New York State Education Department (NYSED) for the placement of elementary school-aged children who are classified with Autism on their
[IEP]. 20
The [Private School’s] treatment model is based upon the science and clinical practice of [ABA]. ABA is the application of science based behavioral principles in an applied setting, such as a school like [Private School]. ABA treatment approaches are applicable for a wide range of interfering behaviors and learning problems. Educational programming is designed to address individual needs in high student-to teacher ratio classrooms; classroom ratios can range from 10:1:1 to 8:1:4. [21]
Accordingly, the uncontroverted evidence supports a finding that the Private School is the appropriate placement for the Student for the SY at issue. Therefore, Parent has met the second prong of the Burlington/Carter framework for tuition funding.
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.”[22] 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.”[23] Direct and prospective funding are appropriate remedies in due process proceedings seeking payment for unilateral placements. [24]
The hearing record establishes that the Parent provided the DOE with the requisite statutory notice.[25] The Parent further provided unrefuted testimony to establish that they cooperated with the DOE[26] and the Principal testified that Student is an “appropriate and typical candidate” for the Private School, and “a seat is available” for the SY at issue. [27]
Accordingly, the DOE failed to establish that the equities do not favor the Parent and the Student is entitled to an award of tuition.
20 P-E-2; Transportation
The Parent withdrew their request for funding of transportation expenses yet maintained a claim for transportation to and from the Private School. 28 The DOE objected on the grounds that “by not presenting the transportation claim at hearing, that parents counsel abandoned the transportation claim and it’s improper to request the relief after the case has concluded.” 29
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”. [30] 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’”. [31]
In addition, State 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.” [32]
In this case, the Student’s IEP clearly mandates special transportation.[33] In addition, an IHO generally has broad authority to fashion appropriate equitable relief.[34] Therefore, the undersigned shall order special transportation as set forth in the IEP upon proof of enrollment at the Private School. The DOE failed to contest Student’s eligibility for special transportation.
However, Parent’s subsequent unsupported request for specific accommodations such as “Limited Travel Time”, “Route with Fewer Students”, and “Door to Door Busing”, were not substantiated at the hearing and shall not be granted. [35]
28 IHO iii. 29 IHO iv. Attorney’s Fees
The DPC includes a claim for attorneys’ fees.[36] 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.[37] 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 2023-2024 SY; the Private School is the appropriate placement for the Student for the 2023-2024 SY and the Student is therefore entitled to pro-rated funding for the 2023-2024 SY upon proof of enrollment; Student is entitled to special transportation as set forth in the December 2022 IEP. [38]
ORDER
Based on the foregoing, it is hereby: ORDERED that the DOE shall, within 35 days of receipt of an enrollment agreement, fund prorated tuition from first day of Student’s enrollment at the Private School for the 2023-2024 school year through the end of the 2023-2024 school year;
IT IS FURTHER ORDERED that the DOE shall, immediately upon receipt of an enrollment agreement, provide the Student with transportation as set forth in the Student’s December 2022 IEP from the closest safe curb to the Private School;
SO ORDERED.
DATED: November 20, 2023 Eryn DeFontes
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, 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
1. Prior Written Notice (PWN) 10/27/18 4pp. Parent’s Exhibits: DOE
A. Impartial Hearing Request 09/06/23 8 pages
B. Ten Day Notice 08/16/23 1 page
C. Individualized Education Program 12/16/22 17 pages
D. Private School Elementary School Program Description UNDATED 7 pages
E. Affidavit of Private School Principal, M.S. Ed. 10/11/23 4 pages
F. Developmental Pediatrics Evaluation by Developmental Pediatrician, MD. [REDACTED] 05/24/23 8 pages
G. Affidavit of Developmental Pediatrician, MD. [REDACTED] (Curriculum Vitae Attached) 21 10/31/23
H. Neurological Follow-Up Report 04/18/23 2 pages
I. Affidavit of Psychologist MD, M.B.B.S., F.A.A.P, M.R.C.P.(1), DCH (Curriculum Vitae Attached) 10/31/23 4 pages
J. Affidavit of Parent/Guardian 10/26/23 5 pages
IHO EXHIBITS
IHO i Parent’s Pendency 10/11/ 8pp
memo 23
IHO ii DOE’s Pendency 10/19/ 7pp memo 23
IHO iii Email: Parent’s req 11/8/2 2pp for transportation [3]
IHO iv Private School rate 11/8/2 1p
Footnotes
[1] The Student’s classification is not in dispute.
[2] P-A-Parent’s claim for funding independent educational evaluations (IEEs) was withdrawn. Tr. 26:17, 18. Parent’s request for transportation was maintained and discussed herein. Parent’s claim for transportation “expenses” was withdrawn. IHO iii; iiia.
[3] IHO iv was further submitted and entered into the hearing record as IHO iv. The DOE did not object. Affidavit of Private School Principal was affirmed on the record. Tr. 66.
[4] Tr. 27:11-17.
[5] Tr. 28.
[6] 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.
[7] 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).
[8] Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. 386, 137 S. Ct. 988 (2017).
[9] 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).
[10] NYS Educ. Law § 4404(1)(c).
[11] 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).
[12] Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005).
[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] Tr. 93; P-A-4. The Principal testified that the Student was determined to be a viable candidate for admission to the Private School, and a seat for SY at issue is available. P-E-3.
[18] P-G-4.
[19] Id. at 3, 4; P-H-2; P-I.
[21] Id.; P-D-2.
[22] See, Frank G., 459 F.3d at 363-64; see also 20 U.S.C. § 1412(a)(10)(C)(iii).
[23] Gagliardo, 489 F. 3d 105 at 112, citing Carter, 510 U.S. 7 at 16.
[24] 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).
[25] P-B.
[26] P-J.
[27] P-E-3; P-J-3¶10.
[30] Donald B. by Christine B. v. Board of Sch. Commissioners of Mobile County, Ala., 117 F.3d 1371, 1374 (11th Cir. 1997) (internal citation omitted).
[31] Donald B., 117 F.3d at 1375 (internal citations omitted).
[32] Education Law §§ 4401[1], 4402[4][a]; see also Education Law § 4401(2); 8 NYCRR § 200.1[ww]).
[33] P-C-16.
[34] See, e.g., Mr. and Mrs. A v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 422-23, 427-30 [S.D.N.Y. 2011]; see Forest Grove v. T.A., 129 S.Ct. 2484 [2009]). Emphasis added.
[35] IHO iiia.
[36] P-A-5.
[37] 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).
[38] At the close of the hearing, Parent requested revision of the Student’s IEP to reflect referral to a non-public school (NPS). Tr. 122. Such request is denied, as the instant Decision clearly sets forth Student’s placement.
[3] IHO v Email: DOE 11/15/ 3pp objection to 23 transportation claim