New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 537777 - NYC: 194533

FINDINGS OF FACT

Case Number: 194533

NYS Case Identifier Number: Student’s Name: REDACTED Date of Birth: REDACTED District: REDACTED Hearing Requested By: Parent Dates of Hearing: July 29, and September 15 and 24, 2020

Record Closed Date: October 5, 2020 Hearing Officer: Tessler

APPEARANCES:

July 29, 2020

Parent:

REDACTED, Esq.

Department of Education:

REDACTED, CSE Representative

September 15, 2020 Parent:

REDACTED, Esq.

Department of Education:

REDACTED, CSE Representative

September 24, 2020 Parent:

REDACTED, Esq.

Department of Education:

REDACTED, CSE Representative

EXHIBITS: REDACTED

• • Introduction On June 22, 2020, I was appointed to conduct an impartial hearing pursuant to 20 U.S.C.

§1415, regarding the special education program of REDACTED ("REDACTED"); the hearing was held on July 29, and September15 and 24, 2020. Lists of persons in attendance and documents received in evidence are appended to the record.

The decision deadline was extended at the parties’ request on July 29 and September 15, 2020 because of witness availability. Before granting the extension requests, I determined that the extensions would have no adverse impact on the child’s educational interest or well-being, and no adverse financial or other detrimental consequences for the parties. I also determined that the extension requests were not based on school vacations, or scheduling conflicts of the parties or their representatives.

• • Background REDACTED is an REDACTED year old student classified with a speech or language impairment; classification is not disputed. (T. 19). During 2018/19 she attended the REDACTED program (“REDACTED”), a non-public, non-approved program. An IEP dated June 19, 2018 recommended a 15:1 class and placement in REDACTED. On August 18, 2018, REDACTED, REDACTED’s parent, notified the CSE that the program and placement recommendations were not appropriate, and that she intended to place REDACTED in REDACTED and seek department of education funding for tuition. (Exh. B). REDACTED, Esq., attorney for REDACTED’s parent, requested the hearing on June 19, 2020, alleging that the department did not offer FAPE to REDACTED for 2018/19 because of procedural and substantive violations in the June 19, 2018 IEP, and seeking funding for 2018/19 tuition and related services. (Exh. A).
• • The CSE’s Case On September 15 and 24, 2020, the CSE representative stated on the record that the department would not present any witnesses or submit documents into evidence. (T. 10, 17). IV. The Parent’s Case The parent submitted the affidavit in lieu of testimony of REDACTED, Director of REDACTED School for 10 years, who has M.S. degrees in special education and administration, and certification in special education and school building leadership; her duties include supervision, curriculum development, admissions assessments, classroom observations, and working directly with teachers and students. REDACTED offers self-contained special education classrooms within mainstream school sites, which provides for small-full time individualized special education programming with appropriate mainstream opportunities. Student’s disability classifications include Learning Disabled and Speech Impaired, and classes are grouped based upon academic, social and learning needs. Staff takes part in ongoing professional development. REDACTED offers speech-language therapy and counseling by licensed and certified providers.

REDACTED entered REDACTED in September 2017, and was in a 9:1:1 11th grade class during 2018-19; the students were within a three year age range, had similar functioning levels, and studied a Regents curriculum. REDACTED observed REDACTED in the classroom, collaborated with her teachers and spoke daily with her teachers and providers. REDACTED has significant language and processing delays that make it difficult for her to learn new concepts and keep up in social settings, this causes extreme anxiety that exacerbates her learning and social difficulties. REDACTED provided REDACTED with a small intensive special education program and supportive environment that enabled her to make progress. The program was departmentalized, with mainstream opportunities in American History.

REDACTED’s teachers and providers and REDACTED had team meetings every two weeks to discuss progress and program modifications. Progress was assessed through classwork, assignments, tests and Regents exams. REDACTED’s ELA teacher had a Masters in special education and 30 years experience; her ELA goals addressed reading comprehension and writing, and she had 1:1 reading support. The program addressed REDACTED’s writing difficulties with graphic organizers, writing rubrics, 1:1 scaffolding, editing and writing feedback; the speech therapist pushed into the classroom to support REDACTED’s writing needs. During 2018-19 REDACTED made significant progress in ELA: she was able to write a 4-6 paragraph essay, became a more independent writer, improved her comprehension, and passed the ELA Regents exam. REDACTED’s math teacher had six years experience teaching students with learning difficulties; REDACTED worked on functional math skills for use in daily living. REDACTED became especially anxious in math, and required much 1:1 support. She made progress and passed the class. REDACTED’s Earth Science teacher had special education certification, and used a modified curriculum, including visual aids, manipulatives, break down of lessons, as well as small group teaching. REDACTED progressed and passed the Earth Science Regents exam. REDACTED attended a mainstream American History class four days a week; she was supported in this class with intensive small group instruction in a “Preview and Review” history class three periods per week in her 9:1:1 class, taught by a teacher with a M.S. in special education. REDACTED progressed and passed the American History Regents exam. REDACTED also took classes in computer skills and word processing. She received both speech-language therapy and counseling (Exhs. E, F). The speech therapist worked with REDACTED individually and collaborated with her teachers to make sure that classwork was appropriately modified to support her language processing weaknesses. The counselor worked with REDACTED on managing anxiety and peer relationships, and also coordinated with teachers to ensure that REDACTED felt supported in the classroom. During 2018-19 REDACTED made academic and social progress, her anxiety decreased and her self-confidence increased. Per the class schedule (Exh. H), REDACTED’s REDACTED program is 56% secular and 44% religious.

The parent submitted the Affidavit in Lieu of Testimony of REDACTED, REDACTED’s parent, who states that during 2018/19 REDACTED was 16 years old and classified with a speech or language impairment. REDACTED has received special education services from the department of education since she was in 3rd grade: while REDACTED is cooperative and responsible in school, she is easily distracted and overwhelmed with schoolwork, becomes anxious and requires much adult support. REDACTED attended a mainstream program with supports until she entered REDACTED in September 2017. During 2017/18, REDACTED was in a 9:1:1 class in REDACTED and made progress, but continued to need academic and social supports. REDACTED attended the June 19, 2018 IEP meeting, and expressed her concerns that the recommended 15:1 class was too large and did not offer sufficient supports, but the CSE told her it was the only program they could offer. After the IEP meeting, REDACTED received a notice of placement in REDACTED, the same placement the CSE offered for the prior year, when she had visited the school and expressed concerns about it to the CSE. She stated that REDACTED is a huge community high school, that placement in such a setting would exacerbate REDACTED’s anxiety, and that REDACTED requires a much smaller classroom setting and more supports than REDACTED could provide. REDACTED remained in REDACTED during 2018-19 and made tremendous progress. REDACTED’s small classes and individualized attention supported REDACTED’s needs, her self-confidence improved, and her anxiety regarding school work decreased. She was better able to handle her school work and made friends in the program. REDACTED stated that if the department had offered an appropriate program and placement for the 2018-19 school year, she would have considered it, even if the program only had secular instruction, because she could have sought religious instruction after school. The REDACTED 2018/19 tuition is $51,000, and the parents are fully liable for the contract cost; their income is insufficient to pay the tuition (Exh. I), and they request direct payment by the department to REDACTED. Tuition is $45,000 (Exh. C), and related services cost $6,000 (Exh. D); the parent has paid $1,750.00 (Exhs. G, L).

V. Findings of Fact and Conclusions of Law

I find that REDACTED’s parent is entitled to department of education payment for REDACTED’s 2018/19 tuition and related services at REDACTED, because the CSE failed to recommend an appropriate program and placement for REDACTED, REDACTED is an appropriate educational program for REDACTED, and equitable considerations support a tuition award.

A central purpose of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C.

§§ 1400-1482) is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][1][A]; Bd. of Educ. v. Rowley, 458 U.S. 176, 179-81, 200-01 [1982]; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [2d Cir. 2006]). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a written IEP (20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.17[d]; see 20 U.S.C. § 1414[d]; 34 C.F.R.

§ 300.320). A FAPE is offered to a student when (a) the board of education 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 (Rowley, 458 U.S. at 206-07). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). Under the IDEA, if a procedural violation is alleged, an administrative officer 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 (20 U.S.C.

§ 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]). The IDEA directs that, in general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and... affords the student with an opportunity greater than mere 'trivial advancement'" (Walczak, 142 F.3d at 130). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir.

1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the LRE (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Walczak, 142 F.3d at 132). An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services (Application of the Dep't of Educ., Appeal No. 07-018).

In Florence County School District Four at al. vs. Carter, 510 U.S. 7 (1993) ("Carter"), the U.S. Supreme Court held that a court may order reimbursement for parents who unilaterally withdraw their child from a public school that provides an inappropriate education under IDEA and put the child in a private school that provides an education that is otherwise proper under IDEA but is not approved by the state education agency pursuant to IDEA (20 U.S.C.

§1402(8)(B)). In Carter, the Court held that a parental placement is proper if the private school is reasonably calculated to enable the child to receive educational benefits. To win reimbursement under Carter, it must be shown that (1) the public placement violates the IDEA,

(2) the private placement is proper and is reasonably calculated to enable the child to receive educational benefits, and (3) equitable factors, such as the appropriate and reasonable level of reimbursement, communication and cooperation between the parents and the CSE, and the parents’ knowledge of and timely exercise of their due process rights, support the payment award.

The standards for determining whether a unilateral private school placement is "appropriate" under the IDEA are similar but not identical to the standards for assessing the adequacy and appropriateness of a proposed public placement. Subject to certain limited exceptions, the same considerations and criteria that apply in determining whether the school district's placement is appropriate should be considered in determining the appropriateness of the parents' placement." Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007). The issue turns on whether a placement -- public or private -- is reasonably calculated to enable the child to receive educational benefits. A private placement meeting this standard is one that is likely to produce progress, not regression. Parents are not barred from reimbursement where a private school they choose does not meet the IDEA definition of a free appropriate public education, and an appropriate private placement need not meet state education standards or requirements. Frank G. v. Bd. of Educ., 459 F.3d 356, 364 (2d Cir. 2006). A private placement need not provide certified special education teachers or an IEP for the disabled student. The test for the parents' private placement is that it is appropriate, and not that it is perfect. A student's academic progress in a unilateral private placement is relevant, but not dispositive, of the determination of whether it is appropriate. 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. The Second Circuit has cautioned that progress does not itself demonstrate that a private placement was appropriate, and that even where there is evidence of success, courts should not disturb a state's denial of IDEA reimbursement where the chief benefits of the chosen school are the kind of educational and environmental advantages and amenities that might be preferred by parents of any child, disabled or not. A unilateral private placement is only appropriate if it provides education instruction specifically designed to meet the unique needs of a handicapped child. Gagliardo, 489 F.3d at 115.

I find that REDACTED’s parent met the Carter requirements. The CSE did not present any witnesses or offer any documents into evidence, and did not offer a placement for 2018/19; I conclude that the department of education did not offer FAPE to REDACTED for 2018/19.

REDACTED offered a supportive, structured, small class environment, with multi-sensory instruction, individual attention, and related services; the program effectively addressed REDACTED’s learning, language, and social issues. The curriculum was individualized to each student, and provided the modifications, supports and strategies, which REDACTED required.

The program staff included certified/licensed teachers and related service providers. The staff regularly monitored students’ progress and modified their programs to suit their developing needs. The record indicates that REDACTED made progress at REDACTED. REDACTED’s program was reasonably calculated to ensure that REDACTED benefited educationally and made academic and social progress, and provided an education in substantial compliance with all the substantive requirements of IDEA.

I find that equitable considerations also support a tuition award: the parent fully cooperated and communicated with the CSE and made a timely hearing request, and the amount requested is reasonable.

I find that the parent is entitled to direct tuition funding. See: Burlington, supra, “In a case where a court determines that a private placement desired by the parents was proper under the [IDEA] and that an IEP calling for placement in a public school was inappropriate, it seems clear beyond cavil that “appropriate” relief would include a prospective injunction directing the school officials to develop and implement at public expense an IEP placing the child in a private school”; D.A. vs. N.Y.C. Dept of Education, 09-CIV-5097 (SDNY, 2/1/11), which held parents who satisfy the Burlington/Carter factors have a right to retroactive direct tuition payment, and that the exercise of rights under IDEA cannot be made to depend on the financial needs of a disabled child’s parents; Connors vs. Mills, 34 F.Supp 2d 795 (NDNY, 1998), “[when]…a parent shows that his or her financial circumstances eliminate the opportunity for unilateral placement in the non-approved school, the public school must pay the cost of private placement immediately….. it is ‘beyond cavil’ that an impartial hearing officer can order prospective tuition funding; to hold otherwise would be to deny a child the right to access to services under the IDEA”; Sabatini v. Corning-Painted Post Area School District, 78 F.Supp. 2d 138 (USDC, WDNY), a school district may be compelled to disburse funds for the student’s tuition at a private school and implement a hearing officer’s decision to place the student in anon-State-approved private school; Susquenita School District v. Raelee, 96 F.3d 78 (3d Cir., 1996) in which the court stated that the purpose of the IDEA is not advanced by requiring parents who have succeeded in obtaining a ruling that a proposed IEP is inadequate to front the funds for continued private education. “The burden that such an approach would place on many families is overwhelming. The cost of private education, especially in institutions specializing in teaching the learning disabled, is substantial. Families without means would be hard pressed to pay for private education…[t]he prospect of reimbursement at the end of the litigation turnpike is of little consolation to a parent who cannot pay the toll at the outset.” (Id. at 87). I conclude the parent is entitled to direct funding for REDACTED for 2018/19.

However, reimbursement must be limited to the amount paid for the secular part of REDACTED’s education. In Application of the Board of Education of the City School District of the City of New York, Appeal No. 96-14, the State Review Officer stated that tuition reimbursement to parents of a student who attends a school which offers religious instruction is not precluded by the First Amendment’s Establishment Clause. The decision relies on Zobrest v. Catalina Foothills School District, 113 S.Ct. 2462 (1993), which held that “Government programs that neutrally provide benefits to a broad class of citizens defined without reference to religion are not readily subject to an Establishment Clause challenge just because sectarian institutions may also receive an attenuated benefit.” The IDEA has the clear secular purpose of ensuring that all children with disabilities are offered a free appropriate public education, and that Burlington and Carter provide for the remedy of tuition reimbursement under IDEA; this remedy should be available to all parents who meet its criteria. “Tuition reimbursement does not involve the imprimatur of State approval upon the school selected by the parents, nor does it have as its primary effect the advancement of religion. Tuition reimbursement does not create a financial incentive for children to undertake religious education. It simply makes parents whole, by reimbursing them for expenditures which they would not have made, if their boards of education had offered their children the appropriate educational placements.” I find that REDACTED’s part-religious curriculum does not preclude an award of tuition reimbursement.

The record indicates that about 44% of REDACTED’s school day is devoted to religious instruction; therefore 56% of the tuition, plus the full cost of related services, shall be funded.

VI. Order

IT IS THEREFORE ORDERED THAT: the department of education shall fund (a) 56% of REDACTED’s 2018/19 tuition at REDACTED in the amount of $25,200, and (b) the full cost of related services in the amount of $6,000, for a TOTAL AMOUNT TO BE FUNDED OF

$31,200.00.

Dated: October 6, 2020 Craig Tessler, Esq.

Craig Tessler, Esq. Impartial Hearing Officer

PLEASE TAKE NOTICE

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 The Department of Education has designated the New York City Law Department to accept service of papers on its behalf, including appeals of decisions of Impartial Hearing Officers. Such service is made at 100 Church Street, New York, NY 10007 at the Messenger Center.