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FINDINGS OF FACT AND DECISION
Case Number: 259670
Student’s Name: REDACTED
Date of Birth: REDACTED
School District: N.Y.C. Dept. of Education
Service District: REDACTED
Home District: REDACTED
Date of Filing: 09/11/2023
Hearing Requested by: Parent
Date of Hearing: 11/22/2023
Actual Record Closed Date: 12/04/2023
Date of Decision: 12/04/2023
Date of Distribution: 12/04/2023
Impartial Hearing Officer: Patricia Peña, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON 11/22/2023
For Student and Parent:
REDACTED
REDACTED
Parent’s Representative
For the Department of Education:
REDACTED
District Representative
INTRODUCTION AND PROCEDURAL HISTORY
This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parent’s Due Process Complaint (“DPC”) filed on or about 09/11/2023 by Parent, through counsel on behalf of Student against the New York City Department of Education (“DOE” or “District”). I was appointed as the IHO on 09/22/2023
A due process hearing was held virtually via eScribers on 11/22/2023. REDACTED represented Parent and Student. REDACTED represented DOE. DOE did not submit any documents into evidence, call any witnesses, cross examine Parent’s witnesses, waived opening and closing statement, and conceded Prong I of the Burlington/Carter standard.[1] Parent submitted 14 documents into evidence without objection.[2] Included in Parent’s evidence were affidavits from the Director of Academic Support of the Private School Program and Parent.
JURISDICTION
The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.
BACKGROUND
Student is as an REDACTED year-old child classified by the committee on special education (“CSE”) as a student with Other Health Impairment.[3] In it’s DPC, Parent alleges that Student struggles with academic, social, and emotional struggles.[4] On or about 06/27/2023, the
ISSUE
The issue for determination is whether DOE failed to offer Student a FAPE for the 2023-2024 school year. Specifically, whether the program and program offered by the District was adequate to meet Student’s needs.
By way of relief, Parent seeks tuition reimbursement for the cost of tuition at the Private School. In light of the foregoing and as more fully discussed below, I find that a) DOE failed to meet its burden that it offered Student a FAPE for the 2023-2024 school year, b) Private School provided Student specially designed instruction sufficient to meet Student’s needs, and c) the equities support Parent’s request for relief.
FINDINGS OF FACT AND DECISION
After a full review of the record generated at hearing, I make the following findings of fact and determinations.
EXH. G20
EXH. A
The 06/27/2023 IEP references a psychoeducational evaluation conducted on 05/04/2022. 7 Per the results of Student’s cognitive evaluation, Student’s “scores range from the Very Low – Very High range, with strength in Working Memory and weakness in Verbal Comprehension. [Student’s] scores on the KTEA-III indicate that her academic functioning in the areas of reading, mathematics, and writing fall within the average range.”[8] Parent noted “concerns in the area of Hyperactivity, Conduct Problems, Attention Problems, Aggression, Anxiety, Atypicality, Adaptability and Activities of Daily Living.”[9] Student has been diagnosed with ADHD, combined type, for which she takes daily medication for.[10] Reference to a 6/8/2022 psychiatric evaluation in the IEP indicates that Student “appears to be functioning in the below average range in her reading comprehension and written expression abilities. She presents with weaknesses in her ability to understand spoken paragraphs of increasing length, creating meaning from the spoken narrative/text, answer questions about the context of the information given and using critical thinking skills to interpret beyond the given information. She also demonstrated weaknesses in her ability to follow directions. [Student] benefits from explicit and direct phonics instruction, sight word cards, a word wall, previewing key lesson vocabulary, use of checklists, graphic organizer, math manipulatives, visual aids, breaks, ontask focusing prompts, directions repeated, positive reinforcement and extended time to complete academic tasks.”[11] Further, the public school’s Literacy Specialist corroborates
EXH. G1
Student’s inability to meet basic benchmarks despite the increase support services Student received during the prior school year. 12
Private School is a school for children with language-based learning disabilities. [13] Students enrolled in Private School all have language based learning disabilities and at least average intelligence.[14] Private School offers small classes, with no more than 12 students and two teachers. However, reading, writing, and math typically have 4 to 7 students. Groups can be as small as 2 students or as big as 8 students.[15] For the 2023-2024 school year, there are 157 students in the Private School.[16] Student is in a class of[12] students and two teachers. [17] Student is in a smaller group, of 7 students, for reading and writing class, and in a class of 6 students in math.[18] All Private School staff receive training in special education and receive ongoing professional development and continuing education.[19] Student is grouped with students who are within one year of age and who share similar skills and academic deficits. [20] Additionally, Student receives speech and language therapy and counseling at the Private School by licensed and certified professionals.[21] Instruction is broken down, repeated, rephrased, and modeled for Student. Student is also given extended time to process information as well as verbal cues within a structured settling.[22] For her executive function delays, Student is supported with “tools to increase her independence and organization, selfand focus and the small class size and supportive programming helps her. Her organizational skills are reinforced throughout curricular areas through consistent use of graphic organizers and teacher scaffolds.” 23
Parent testified that she attended the 06/27/2023 IEP meeting wherein she voiced concerns about the recommended ICT class. 24 Parent and Student’s teacher stressed Student’s need for 1:1 support in a specialized school for children with learning disabilities.[25] Parent also requested compensatory services for services Student did not receive during the 2022-2023 school year, but the services were denied.[26] Parent also testified that she did not receive a school location letter following the 06/27/2023 IEP meeting.[27] Parent testified that based on her disagreement with the CSE’s recommendations, she enrolled Student in Private School. Parent has paid $1,300 towards the cost of tuition but is unable to pay the rest of the tuition without experiencing extreme hardship. [28]
ANALYSIS
Burden
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
Id. at K7 24
EXH. L2
seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement. [29]
Prong I
The IDEA provides that children with disabilities are entitled to a FAPE.[30] 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.[31] 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 Student to receive educational benefits.[32] 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.” [33]
As to Prong I of the Burlington/Carter standard, DOE failed to meet its burden. DOE did not offer any documents into evidence or call any witnesses. In fact, DOE conceded a denial of FAPE. Therefore, I am constrained to find that DOE failed to offer Student a FAPE for the 2023-2024 school year. Moreover, the uncontested evidence established that Student requires a small class and school setting in a structured and nurturing environment, where instruction is individualized to meet Student’s needs. Therefore, I find that DOE failed to offer Student a FAPE for the 2023-2024 school year.
Prong II
A private school placement must be “proper under the Act.”[34] This means that the private school must offer an educational program which met Student’s special education needs. [35] Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate. 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 Parent’s placement.’” [36]
Parents need not show that the placement provides every special service necessary to maximize Student’s potential.[37] 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.”[38] A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student. [39]
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 to 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. 40
Here, the evidence established that the Private School is a small, specialized school for students with language based learning disabilities. At the hearing, DOE did not make any arguments with respect to the appropriateness of the unilateral placement. I find that the overwhelming evidence established that the Private School adequately meets Student’s needs for the 2023-2024 school year. I find that Parent met its burden in proving that the private program offered an educational program which met Student’s need under Prong II of the Burlington/Carter standard.
The Director of the Private School testified thanks to the targeted instruction received, Student has made progress in reading, writing, and math. Student is “able to write simple sentences, vary sentence types and add appropriate details when provided with a topic sentence and visuals.” 41 In math, Student has improved basic computation skills.[42] She also testified that “[a]s a school for students with language-based learning disabilities, we are constantly addressing language throughout the curriculum. All staff break-down language and explicitly provide
40 Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65 41
EXH. K8
Equities
Even if a Parents establishes a right to reimbursement under the IDEA, “courts retain discretion to reduce the amount of a reimbursement award if the equities so warrant.”[44] In making that equitable determination, a hearing officer may consider many factors, including, inter alia, whether a Parent’s unilateral withdrawal of her child from the public school was justified, whether Parents provided the Department with adequate notice of the withdrawal, whether the amount of private-school tuition was reasonable, whether Parents 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 Department, or whether the arrangement with the school was fraudulent or collusive in any other respect. [45]
Here, on or about 08/24/2023, Parent provided the necessary Ten-Days’ Notice of their concerns with DOE’s offer of FAPE for Student for the 2023-2024 school year. Therein, Parent detailed specific concerns about the recommended program and placement. 46 No evidence was submitted at the hearing describing DOE’s response to the Ten-Day Letter.
Id. at K9 Parent signed a contract with Private School on or about 08/31/2023 in the amount of $74,000. 47 Of this amount, Parent has made a payments that total $1,300, leaving an outstanding balance in the amount of $72,700. 48 Pursuant to the terms of the contract Parent is responsible for the cost of tuition. 49 There is no evidence that Parent hindered the CSE’s efforts to offer Student a FAPE nor did the District make any arguments to that effect. Therefore, overall and after considering the record at the hearing, I find that the equities support Parent’s claim for tuition reimbursement.
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.” [50] 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’”[51] Additionally, transportation is included in the definition of special education. Special Education is defined as “specially designed instruction . . . and transportation, provided at no cost to parents to meet the unique needs of a child with a disability,” and requires school districts to provide disabled students
EXH. D
EXH. E2
EXH. D1
Private School is an appropriate placement, I find that Student is entitled to door-to-door transportation for the 2023-2024 school year and order DOE to continue to provide door to door transportation.
Legal Fees
Parent also requested attorneys’ fees and expenses as part of its relief 53 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. [54] Only a court can determine if a party is entitled to attorneys’ fees, and I would be exceeding the scope of my authority by determining that Parent is entitled to costs. Therefore, Parent’s request for attorneys’ fees is denied.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, I HEREBY FIND: (1) DOE failed to offer Student a FAPE for the 2023-2024 school year.
(2) The Private School is an appropriate placement for Student for the 2023-2024 school year.
(3) The equities favor an award of tuition reimbursement and direct funding for Student’s unilateral placement at the Private School for the 2023-2024 school year.
Education Law §§ 4401(1), 4402(4)(a); see also Education Law § 4401(2); 8 N.Y.C.R.R. § 200.1(ww)
53 Parent’s W-20
(2) The District shall directly pay the Private School the amount of $72,700 for the cost of Student’s tuition for the 2023-2024 school year within thirty-five (35) days of the date of this order.
(3) The District shall continue to provide Student with door-to-door transportation to and from the Private School for the 2023-2024 school year.
SO ORDERED.
Dated 12/04/2023
Patricia Peña, IHO
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, Parents 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 EVIDENCE
None
PARENT’S EVIDENCE
EXHIBIT DATE DOCUMENT Pages
A. Due Process Complaint 9/11/23 4 pages
B. Ten Day Notice 8/24/23 2 pages
C. SY REDACTED School-Program Description 23-24 1 page
D. Enrollment Contract 8/31/23 3 pages
E. Tuition Affidavit of REDACTED 10/17/23 2 pages
F. Student Schedule 23-24 SY 2 pages
G. Individualized Education Program (IEP) 6/27/23 29 pages
H. Literacy Note Request for Neuropsychological Evaluation Undated 1 page
I. 1/13/23 2 pages
J. Student Attendance 10/16/23 1 page
K. Affidavit of REDACTED 11/15/23 10 pages
L. Affidavit of REDATED 11/15/23 3 pages
M. School Placement Letter 6/8/23 2 pages
N. Neuropsychological Assessment IHO’S EVIDENCE None 5/5/23 16 pages
Footnotes
[1] See hearing transcript
[2] Tr. 24
[3] Parent’s G-1
[4] Parent’s A1 CSE convened and developed an IEP. The IEP recommended an integrated co teaching services (“ICT”) class for core subjects, five times per week, individual and group counseling services and individual and group speech and language services. 5 Parent contends that the program and services recommended by the District are insufficient to address Student’s needs and contends that Student requires “placement in a small, supportive, full time special education class and school.” 6 In light of Parent’s disagreement over the recommended program and services, Parent reenrolled Student at Private School and commenced the instant action.
[8] Id.
[9] Id.
[10] Id. at G8
[11] Id. at G8
[12] EXH. H1; I
[13] EXH. K2; see also EXH. C1
[14] Id.
[15] Id. at K3
[16] Id. at K4
[17] Id. at K5
[18] Id.
[19] Id. at K6
[20] Id.
[21] Id.
[22] Id. at K5 monitoring, flexibility, self regulation, and planning. [Student] also needs support for attention
[25] Id.
[26] Id.
[27] Id.
[28] Id.
[29] NYS Educ. Law § 4404[1][c]
[30] 20 U.S.C. § 1400 [d] [1] [A]
[31] 34 C.F.R. § 300.13
[32] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982]
[33] Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 [2017]
[34] Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12, 15 [1993]; Sch. Comm. Of Burlington v. Depot of Educ., 471 U.S. 359, 370 [1985].
[35] 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].
[36] Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. Of Educ. Of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]
[37] Frank G., 459 F.3d at 364-65
[38] Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115
[39] 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].
[42] Id. at K9 instruction for vocabula1y throughout content area courses. [Student] is provided with support for word retrieval delays in all courses. The skills taught in her speech/language group are carried over into the classroom. She is provided with cues to provide specific definitions.” 43 In sum, I find that the Private School meets Student’s needs for the 2023-2024 school year.
[44] Forest Grove Sch. Dist. V. T.A., 557 U.S. 230, 246-47, 129 S. Ct. 2484, 174 L. Ed. 2d 168 [2009]
[45] E.M. v. New York City Dep’t of Educ., 758 F.3d 442, 461 [2d Cir. 2014] EXH. B1 By way of relief, Parent seeks tuition reimbursement for the 2023-2024 school year.
[50] Donald B. v. Board of Sch. Comm’rs, 117 F.3d 1371, 1374 (11th Cir. 1997) (citing 20 U.S.C. § 1401(a)(17); see also N.Y. Educ. Law §§ 4401(4), 4402(4)(d).
[51] Donald B., 117 F.3d at 1375 with “suitable transportation to and from special classes or programs.” 52 Here, since I find that 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).
[54] 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 IT IS THEREFORE ORDERED, (1) The District shall reimburse Parent in the amount of $1,300 within thirty-five (35) days of the date of this order.