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FINDINGS OF FACT AND DECISION
Case Number: 263691
Student’s Name: [REDACTED] (“Student”)
School District: [REDACTED]
Impartial Hearing Officer: DANIELLE SILAS
Date of Filing: 10/11/2023
Hearing Requested by: [REDACTED] (“Parent”)
Date of Hearing: 12/13/2023
Record Close Date: 12/20/2023
Date of Decision: 12/20/2023
Names and Titles of Persons Who Appeared December 15, 2023
For the Student and Parent: [REDACTED] (hereinafter referred to as “Parent’s Attorney”) Parent For the New York City Department of Education: [REDACTED] (hereinafter referred to as “District Representative”)
Witnesses for the Department of Education: None
Witnesses for the Parent: Parent Director of
[REDACTED]
Director of Education of Private School
FINDINGS OF FACT AND DECISION
I. Introduction
This proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482; the federal regulations implementing IDEA, 34 C.F.R. §§ 300.1, et seq.; Article 89 of the New York State Education Law; and the New York State regulations at 8 NYCRR § Part 200, et seq.
The undersigned Impartial Hearing Officer (“IHO”) is a certified New York State Special Education Hearing Officer, employed by the New York City Office of Administrative Trials and Hearings (“OATH”) as a Special Education Impartial Hearing Officer, and meets all the qualifications and requirements outlined in both federal and state statute which grant the IHO the authority to adjudicate this hearing. Furthermore, the IHO is not currently, nor has ever been, an employee of the NYC Department of Education, and does not have any personal or professional interest or bias that conflicts with his objectivity to hear this matter.
II. Background and Procedural History
Petitioner (Parent) is the parent of Student. On October 11, 2023, Parent filed a Due Process Complaint (“Complaint” or “DPC”) against Respondent, the New York City Department of Education (“NYC DOE” or “DOE” or “District”). During the school year in which Parent filed the DPC, Student was diagnosed with Autism, and was found eligible for an extended school year, 12-month, program.1
The undersigned IHO was appointed to preside over the case on December [1], 2023 after the previous IHO recused themselves. A Prehearing Conference was held on November 13, 2023 after the DOE did not hold a resolution session as required under 8 NYCRR 200.5(j)(2)(i) or submit Prior Written Notice (“PWN”) or a Due Process Response (“DPR”) to the DPC as required under 8 NYCRR 200.5[i][4]. A Due Process Hearing (“DPH”) was scheduled for December 15, 2023, and the hearing was held over that one day.
Parent alleges, inter alia, that the DOE did not provide an appropriate Individualized Education Program (“IEP”) and suitable placement for Student.[2] By way of relief, Parent seeks an award of direct tuition funding and tuition reimbursement for Student’s attendance during the 2023-2024 school year at Private School and reimbursement to the Parent for transportation for Student to and from Private School.[3] Furthermore, Parent alleges that the equities support their claim for direct tuition funding and tuition reimbursement for the 2023-2024 12-month school year at issue.[4]
III. Finding of Facts and Decision
After a full review of the record generated at the DPH, I make the following findings of fact and determinations. It is not in dispute that Student is classified as a student with Autism and is entitled to receive special education services. The Committee on Special Education (“CSE”) convened and developed an IEP for Student on or about January 31, 2023.[7] Said program consisted of a Special Class (6:1:1) District Proposed Placement with adapted physical education (“APE”), related services of individual occupational therapy, individual physical therapy, speech-language therapy individually and in a group. The January 2023 IEP also included assistive technology and stated Student is eligible for the extended school year under this IEP.[8]
It is uncontested between the parties and as conceded to by the DOE at the hearing that a FAPE was not given for the 2023-2024 12-month school year.[9]
Therefore, in light of the foregoing and as more fully discussed below, I find that a) the DOE failed to meet its burden that it offered Student a FAPE for the 2023-2024 school year, b) the Private School offered by Parent with specially designed instruction is sufficient to meet Student’s needs, and c) the equities support the Parent’s requested relief.
A. FAPE and Unilateral Placement
1. The DOE Deprived Student of a FAPE for the 2023-2024, 12-month, School Year (Burlington/Carter Prong I)
The IDEA (20 U.S.C. §§ 1400-1482) contemplates two specific purposes designed to ensure (1) that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) that the rights of students with disabilities and parents of such students are protected.[10] The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement.[11]
A free and appropriate public education can be said to be offered to a student when (a) the school district 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
5 Transcript
6 Transcript to receive educational benefits.[12] "[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP."[13] The Supreme Court ruled that "[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement."[14]
"Multiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not,"[15] and the Second Circuit explained that not all procedural errors render an IEP legally inadequate under the IDEA.[16] Under the IDEA, if procedural violations are alleged, an IHO may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits.[17]
An IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE.[18] A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction,"[19] but the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP."[20] "The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created,"[21] and an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents,"[22] is what is required. School districts are not required to "maximize" the potential of students with disabilities,[23] but are required to provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement.'"[24]
The IEP must be "reasonably calculated to provide some 'meaningful' benefit,"[25] and designed to be provided in the least restrictive environment (“LRE”).[26] An appropriate IEP must include a description of the student’s present levels of academic achievement and functional performance,[27] and outlines annual goals specifically designed to address the Student’s needs resulting from his disability in order to make progress in the general education curriculum[28] through the use of appropriate special education services.[29] Although not every student can be expected to attend a regular education curriculum, the IEP “must be appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives."[30]
i. The DOE Failed to Provide Student with an Appropriate Education Program or Placement
As to Prong I of the Burlington/Carter standard, the DOE conceded at the hearing that it failed to meet its burden that it provided Student with a FAPE for the 2023-2024, 12-month school year.[31] Moreover, a review of the record herein establishes that the weight of the evidence supports the conclusion that the DOE failed to offer Student an educational program reasonably calculated to offer a FAPE.
2. The Unilateral Placement Was Appropriate (Burlington/Carter Prong II)
A private school placement must be "proper under the Act."[32] This means that the private school must offer an educational program which met the student's special education needs.[33] Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate."[34] 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.'"[35]
Parents need not show that the placement provides every special service necessary to maximize the student's potential, and 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."[36] A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student.[37]
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.[38]
Here, the DOE presented no evidence or rebuttal that Parent’s unilateral placement was inappropriate. Parent provided the Private School program description,[39] academic schedule,[40] Student’s Individualized Transdisciplinary Education Plan Private School developed,41 Student’s attendance record,[42] and Student’s progress report.[43]
The Director of Education for Private School testified that Student “needs a high level of support throughout—through his day, from morning, through residential life, through the next day.”[44] Moreover, “[Student] needs support and guidance throughout the whole day from someone -- from a team of different professionals who really can address all the individual struggles that he has due to [Student’s disability].”[45]
Licensed Psychologist stated in their affidavit that Private School is an appropriate placement for Student. This is due to “[t]he transdisciplinary approach [that Private School offers] involving the coordination of [Student’s] teachers, clinicians and residential staff in the development and monitoring of [Student’s] program.”[46] Further, Licensed Psychologist stated their familiarity with Private School’s evidence-based program and applied principals and that such principals are effective in teaching students with Autism, such as Student.[47] Which has been demonstrated by the progress that Licensed Psychologist has observed in Student since their original evaluation in 2021.[48]
I found the testimony of Director of Education and Parent’s other witnesses persuasive, credible, and unrebutted.
41 Ex. P-J.
In reviewing the testimony and documents presented, the weight of the evidence establishes that Student’s individual special education needs were addressed by the Private School and that the instruction offered was "reasonably calculated to enable the child to receive educational benefits."[49]
3. The Equities Are in Parents’ Favor (Burlington/Carter Prong III)
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."[50] 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 the parent provided the DOE with adequate notice of the withdrawal, whether the amount of private-school tuition was reasonable, whether the parent should have availed herself of needbased 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.[51]
By way of relief, Parent seeks reimbursement52 for their private school tuition costs and direct funding for any outstanding tuition payments owed. Direct tuition funding is relief encompassed by the equitable remedial powers inherent in IDEA, and Parent 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.”
It is well established that a Parent must inform the CSE during the most recent CSE meeting, or notify the District at least ten days prior to the student’s removal "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense."[53] This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools."[54] “Although a reduction in
52 The entitlement created by the law is exclusively the package of rights to a free appropriate public education in the least restrictive environment. While the statute creates a broad power on the part of decision-makers to devise remedies when that entitlement has been denied, those powers are discretionary and do not yield a right to receive reimbursement; reimbursement is merely an option, at the discretion of the decision maker, as he or she balances the equities of the individual case. To call a case a ‘reimbursement’ case is, therefore, to mischaracterize the parties’ rights and responsibilities by treating a discretionary remedy as though it were an inviolable right. For that reason, there is no such thing as a ‘reimbursement’ or ‘prospective payment’ case under the IDEA. There is, simply, no right or entitlement to receive either of those remedies under the statute. reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision.”[55]
Here, Parent provided the necessary Ten-Day Notice outlining their concerns with the DOE’s offer of a FAPE for Student for the 2023-2024 school year.[56] No evidence was submitted at hearing describing the DOE’s response to the Ten-Day Notice.
Additionally, having found that the placement was appropriate and met Student’s needs, and without a contrary view or position from DOE other than to summarily object to the unilateral placement, I find that the tuition costs are reasonable, albeit significant.[57] Moreover, I find that the weight of the evidence establishes that Parents cooperated with the DOE and the CSE’s efforts to develop an IEP and recommend a program and placement for the 2023-2024 school year. Accordingly, I find that the equities support Parent’s claim for direct tuition funding and tuition reimbursement.
4. Transportation
Parent is also requesting that the DOE reimburse the Parent for transportation costs for Student to and from Private School for the 2023-2024 school year.[58]
The IDEA specifically includes transportation and any modifications or accommodations necessary to assist a student to benefit from their special education. Similarly, New York 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.” By the authority delegated by Congress, the New York State Legislature afforded all private school students full access to all special education services.
The DOE did not present any evidence with regards to Parent’s request for special education transportation.[59] The record sufficiently supports a finding that Student requires doorto-door special education transportation to and from Private School for the 2023-2024 school year. Specifically, that Parent travels forty (40) miles each way in order to transport Student to Private School.[60] Moreover, alternative mode of transportation would not be possible due to Student’s disabilities.[61] Accordingly, the DOE shall reimburse Parent for reasonable transportation costs expended to take Student to and from Private School for the 2023-2024, 12 month school year.
IV. Orders
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS
HEREBY:
1. ORDERED that the DOE shall, within 30 days of receipt of proof of attendance, invoices, and receipts, reimburse Parent for the cost of tuition already paid to Private School for the 2023-2024 school year, and directly fund Private School for any remaining balance in a total amount not to exceed $487,600; and it is further
2. ORDERED, that the DOE shall reimburse the Parent for reasonable transportation costs of Student to and from Private School for the 2023-2024 12-month school year as well as for school breaks.
DATED: SO ORDERED. 12/20/2023
Danielle Silas, 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 proceedings before an SRO are found in Part[279] of the Regulations of the Commissioner of Education. A copy of the rules in Part
DISTRICT EVIDENCE
PARENT EVIDENCE
P-A. Procedural Records Hearing Request 10/11/23 9 pages
P-B. Individualized Education Program Individualized Education Program 01/31/23 44 pages
P-C. Evaluations and Assessments Psychological Evaluation 07/28/21 6 pages
P-D. Physical Therapy Evaluation 10/15/21 4 pages
P-E. Occupational Therapy Evaluation 10/21/21 8 pages
P-F. Speech-Language Evaluation 11/10/21 5 pages
P-G. Vocational Assessment 11/30/21 20 pages
P-H. Neuropsychological Evaluation 12/07/21 22 pages
P-I. Parent Vocational Interview Private School 01/26/23 3 pages
P-J. Individualized Transdisciplinary Education Plan (ITEP) 06/15/22 66 pages
P-K. Enrollment Contract 03/20/23 6 pages
P-L. Addendum Payment Schedule 03/29/23 1 page
P-M. Class Schedule 2023-2024 2 pages
P-N. Tuition Affidavit 09/21/23 1 page
P-O. Program Description 2023-2024 1 page
P-P. Progress Report 11/10/23 55 pages
P-Q. Attendance Record 11/30/23 4 pages
P-R. Correspondence and Miscellaneous Records Ten-Day Notice with Submission and Receipt 06/22/23 4 pages
P-S. Prior Written Notice 06/21/23 4 pages
P-T. School Location Letter 06/21/23 2 pages
P-U. Affidavits in Lieu of Direct Testimony Affidavit of Licensed Psychologist 12/07/23 7 pages
P-V. Affidavit of Parent 12/13/23 6 pages
P-W. Affidavit of Director of Private School 12/08/23 8 pages
P-X. Affidavit of [REDACTED] 12/07/23 6 pages
IHO EXHIBITS
Footnotes
[1] Ex. P-B
[2] Ex. P-A
[3] Ex. P-A
[4] Ex. P-A The DOE did not present any evidence or witness testimony.5 Parent Representative submitted exhibits A-X into the record on consent of the DOE.6 A list of the exhibits is included at the end of this decision.
[7] Ex. P-B
[8] Ex. P-B
[9] Transcript
[10] 20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982].
[11] Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85.
[12] Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005].
[13] Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009].
[14] Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. , 137 S. Ct. 988, 999 [2017].
[15] R.E., 694 F.3d at 190-91.
[16] M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003].
[17] 20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR §200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245.
[18] 20 U.S.C. § 1415[f][3][E][i].
[19] Rowley, 458 U.S. at 203.
[20] Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189.
[21] Endrew F., 137 S. Ct. at 1001.
[22] Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379.
[23] Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132.
[24] Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008].
[25] Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Endrew F., 137 S. Ct. at 1001.
[26] 20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR §200.1[cc], §200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132.
[27] 34 CFR 300.320[a][1]; 8 NYCRR §200.4[d][2][i].
[28] 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR §200.4[d][2][iii].
[29] 34 CFR 300.320[a][4]; 8 NYCRR §200.4[d][2][v].
[30] Endrew F., 137 S. Ct. at 1000.
[31] Transcript
[32] 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).
[33] 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).
[34] Gagliardo, 489 F.3d at 112.
[35] Id., quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006).
[36] Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115.
[37] 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).
[38] Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).
[39] Ex. P-O.
[40] Ex. P-M.
[42] Ex. P-Q.
[43] Ex. P-P.
[44] Transcript.
[45] Transcript.
[46] Ex. P-U
[47] Ex. P-U
[48] Ex. P-U Based on the evidence presented at the hearing I find that Parent has met their burden in proving that Private School offers an educational program which meets Student’s need under Prong II of the Burlington/Carter standard.
[49] Frank G., 459 F.3d at 364.
[50] Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246-47, 129 S. Ct. 2484, 174 L. Ed. 2d 168 (2009).
[51] E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014).
[53] 20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1].
[54] State Appeal No. 22-050 quoting Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st 29 Cir. 2004].
[55] Id, citing Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 376 [2d Cir. 2006]; Voluntown, 226 F.3d at 68
[56] Ex. P-R
[57] Ex. P-K and P-N
[58] Ex. P-A
[59] Transcript
[60] Transcript
[61] Transcript
[279] and model forms are available at http://www.sro.nysed.gov.