New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 543311 - NYC: 199942

FINDINGS OF FACT AND DECISION

Student’s Name: [Redacted]

Date of Birth: [Redacted]

Hearing Requested by: Parent

Record Close Date: 08/09/2022

Hearing Officer: Mitchell Regenbogen, Esq.

[Redacted], a minor, by and through

His Parents, [Redacted] & [Redacted]

FINDINGS OF FACT AND DECISION AND ORDER

Petitioner

-against-

Mitchell Regenbogen,

New York City Department of Education, Hearing Officer

Respondent.

PROCEDURAL HISTORY

On June 21, 2022, I completed an impartial hearing by telephone in [Redacted], New York, pursuant to the Individual with Disabilities Education Act (IDEA), 20 C.F.R. 1400 et seq., regarding the special education program of the [Redacted] (hereinafter referred to as “the Student”). A list of persons in attendance is appended hereto.

The proceeding was initiated at the request of the Parents by a due process complaint filed September 9, 2020, wherein it is alleged that the New York City Department of Education (the “District”) failed to provide the Student with a free appropriate public education (FAPE) for the 2020-2021 school year. At the conclusion of the hearing the Parents requested payment/reimbursement for the cost of tuition for the Parents’ unilateral placement of the Student at the [Redacted] Academy ([Redacted]) for the 2020-2021 school year. See Parents’ closing brief.

I was appointed as impartial hearing officer on August 24, 2021. Nine hearings were held/scheduled between September 14, 2021, and June 21, 2022.

BACKGROUND AND POSITION OF THE PARTIES

[Redacted] is a [Redacted]-year-old student who is classified as a student with a Learning Disability. 1. The Student’s classification and eligibility for special education services and supports was never in dispute. The Parents unilaterally placed the Student at [Redacted] for the 2020-2021 school year, and now seek tuition payment to [Redacted] for the cost of the 2020-2021 [Redacted] placement. The Parents contend that the District did not provide or offer the Student a FAPE for the 2020-2021 school year, and further contend that the [Redacted] placement is appropriate and that equitable factors support the tuition payment claim. The Parents also request that the [Redacted] tuition should be awarded as compensatory education. See Parents’ closing brief.

At the hearing on June 21, 2022, the District representative stated that the District was not putting on a case as to Prong I of this tuition reimbursement case. Tr. 65:15-18. The District ultimately submitted into evidence one document, the Student’s Individualized Education Program (IEP), dated September 7, 2020, for the 2020-2021 school year.

The Parents submitted an evidence package containing 28 documents, including affidavits serving as the direct testimony of the Parent [Redacted], and [Redacted], [Redacted] campus director. Both witnesses were cross-examined by the District.

FINDINGS OF FACT AND DECISION

The IDEA provides that children with disabilities are entitled to a FAPE (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 Individualized Education Program (“IEP”) (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 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).

Decisions of impartial hearing officers must be on substantive grounds based on a determination of whether a the student received a FAPE, 8 NYCRR § 200.5(j)(4)(i), except as follows:

In matters alleging a procedural violation, an impartial hearing officer may find that a student did not receive a free appropriate public education only if the procedural inadequacies impeded the student’s right to a free appropriate public education, significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of a free appropriate public education to the parent’s child, or caused a deprivation of educational benefits. Nothing in this paragraph shall be construed to preclude an impartial hearing officer from ordering a school district to comply with procedural requirements under this Part and Part 201 of this Title 8 NYCRR § 200.5(j)(4)(ii).

PRONG 1

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 ( NYS Educ. Law § 4404(1)(c)).

A board of education may be required to pay for educational services obtained for a child by the child's parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim. (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]; see also Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park,459 F.3d 356 [2d Cir. 2006], cert denied, Board of Educ. of Hyde Park Cent. School Dist. v. Frank G.,2007 WL 2982269 [Oct. 15, 2007].

The Parents raised multiple challenges to the committee on special education (“CSE”) actions and inactions for the 2020-2021 school year prior to the filing of the due process complaint. Ex. A. 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.” Endrew F. v. Douglas County School District, 137 S. Ct. at 1002 (2017). Here the District called no witnesses to defend against the Parents’ allegations. The Second Circuit has reaffirmed the position that a school district must offer witness testimony to meet its burden of proof in an impartial hearing. See, e.g., L.O. v. New York City Dep’t of Educ., No. 15-1019, 2016 WL 2942301, at *9 (2d Cir. 2016) (holding that the district could not meet its burden of proof to demonstrate that sufficient evaluative material was relied upon in creating the student’s educational program without testimony presented to that effect). I find therefore that there was absolutely no explanation, let alone a cogent and responsive explanation, for the CSE’s actions or inaction on behalf of this Student for the 2020-2021 school year, and the District in this proceeding never asserted that it provided a FAPE for this Student. See transcript generally.

I find that the District has not, therefore, met its burden of proof in this proceeding. The Parents have therefore met the first of the three Burlington/Carter criteria for tuition reimbursement.

PRONG 2

The Parent has the burden of proving that the unilateral placement was appropriate. In order to meet this burden, the Parent must establish, by a preponderance of the evidence, that the unilateral placement provides “educational instruction specifically designed to meet the unique needs of the student” (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 [2d. Cir. 2007]. However, the private school placement “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements” (Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d. Cr. 2006]. The private placement need not provide certified special education teachers or an IEP. Parental placements are not subject to the same mainstreaming requirements as a school district placement. The private school placement must be reasonably calculated to enable the child to receive educational benefits, and must be likely to produce progress, not regression.

The standard to apply is whether "[the] unilateral private placement... provides educational instruction specifically designed to meet the unique needs of a handicapped child" (Gagliardo, 489 F.3d at 115):

No one factor is necessarily dispositive in determining whether Parent' 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, Parent 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).

The District presented no evidence or testimony to challenge the Parents’ contention that [Redacted] was an appropriate program and placement for the Student. The District did, however, assert in its closing brief that the Parents failed to meet their burden and adequately prove that [Redacted] was an appropriate placement for the Student.

I agree with the District that the Parents have not presented any documentary evidence to describe the nature of the instruction offered at [Redacted] to this Student during the 2020-2021 school year. The Parents have not presented course descriptions, a personalized learning plan for this Student, or a 2020-2021 school year progress report. The only [Redacted] progress report submitted is dated December 1, 2019. Ex. Y. The Parents presented testimony of an administrator from [Redacted] via affidavit (Ex. BB) and live testimony at the hearing. The witness from [Redacted] was not the Student’s teacher, but rather the “Campus Director” who previously held roles as an “Assistant Director” and classroom teacher (Ex. BB- 1). According to the [Redacted] witness, all instruction is provided 1:1 at [Redacted] in classrooms that are “small office areas with whiteboards and other forms of technology” (Ex. BB-2, para.6). [Redacted] provides instruction to students who may or may not be considered a student with a disability (Id., para. 7). The witness stated that [Redacted] creates a formal education program for a student when the student enrolls at [Redacted] (Id., para. 8.). However, no such plan was entered into evidence for this Student and it is unclear if this Student ever had the plan created for him. According to the witness, at the time of initial enrollment, “the special education lead teacher reviews the student’s IEP and determines appropriate IEP notes/special education lead notes (similar to goals)” (Id., para. 8). Nothing was presented to show that these steps were actually taken for this Student and to what extent they were taken related to the 2020-2021 school year—the Student’s second year at [Redacted]. The [Redacted] witness stated that “[e]very student has individualized goals for his academic, social, and emotional success” at [Redacted] (Id., para. 13). If any such goals were developed for this Student, they were not part of the record beyond the three general goals discussed below.

The [Redacted] witness reported that the Student received “a 1:1 specially designed program” (Ex. BB-4, para. 25), but never specified how the program was specifically designed to address the Student’s needs. [Redacted] was “aware” of the Student’s “history of [Redacted], [Redacted], and [Redacted]” and as a result, explains that “[Redacted] worked with the family to assist [the Student]... to build his self-esteem and confidence” (Ex. BB-5, para. 26) (Tr. 95, 3- 19). [Redacted] was also “aware” of academic issues such as the Student’s “diagnosis of Dyslexia and learning disorders in reading, writing and math”; the witness states that the Student’s 1:1 program “is specifically designed to address these issues” without explaining how (Ex. BB-5, para. 28). The Student also has “language impediments,” “attention deficit,” “social avoidance and deficits in relationship-building,” “has challenges processing, comprehending, and retaining information, which affects all academic areas,” “has math and cognitive disorders” and a tendency to withdraw/work alone (Ex. BB-5, para. 31). In response to these challenges, [Redacted] offered the following three individual “goals” for the Student:

[The Student] will advocate for himself when he does not understand the material in class or when having challenges outside of class;

[The Student] will participate in a minimum of 2 student activities per month; and During his sessions with [[Redacted]’s] post-secondary counselor, [the Student] will begin research his options for life after high school. (Ex. BB-6, para. 32).

I find that the record is devoid of evidence as to how the above simplistic “goals” even begin to adequately address the Student’s significant needs with respect to which [Redacted] was purportedly “aware.” The record does not include additional goals developed and implemented by [Redacted] related to this Student for the 2020-2021 school year. And despite the second goal above, according to the [Redacted] witness, the Student did not participate in any student activities at [Redacted] during the 2020-2021 school year (Tr. 98, 4-10). It is also unclear whether the third goal is individualized or programmatic, since all students appear to meet with this post-secondary counselor (see, e.g. Ex. BB-4, para. 23).

[Redacted] purportedly provided the following accommodations to the Student: positive reinforcement and consistent praise; organization, redirecting and praise; notes for all submitted assignments; more straightforward assignment questions, but also more detailed questions around class content; extended time; calculators; check-ins; reading certain material out loud (Ex. BB-6, para. 33, 34). [Redacted] also employs the following techniques generally: chunking, positive reinforcement, prompting, modeling, repetition of material and directions (Ex. BB-6, para. 35). The record does not elucidate these accommodations or describe to what extent the individualized goals that overlap with any general style of teaching are actually individualized for this Student. The Student’s IEP recommended a 15:1 special education class in Math, ELA, Social Studies, and Sciences with Counseling (once per week 1:1 and once per week in a group of three) and Speech- Language Therapy (twice per week 1:1) (Ex 1-10, 11). The Parents presented no evidence, other than the Parents’ opinion, that the programmatic recommendations in the IEP were inappropriate. The [Redacted] witness’ affidavit did not address the adequacy of the IEP, Ex. BB, nor how [Redacted]’s program was addressing the recommendations in the IEP, or why it was not addressing them.

As mentioned above, [Redacted] is a 1:1 program. According to the IEP, the Parent at the end of the 2019-2020 school year “reported that the 1:1 setting has allowed [the Student] to make progress in terms of having less stress and anxiety” (Ex. 1-5). The Student also received [Redacted] for [Redacted] and outside counseling (Id.). The record does not clarify to what extent any progress related to a reduction in stress and anxiety is related to the 1:1 setting, the [Redacted], or the outside counseling. The record does not clarify to what extent the 1:1 program has simply removed the Student from an environmental that exacerbated his [Redacted]/[Redacted]/[Redacted] and to what extent [Redacted] is working on those challenges with the Student so that he would be able to handle that environment in the future. There is no element of [Redacted]’s program, per the record, that is striving to reintegrate the Student with peers via group work or any other academic setting besides 1:1. According to the IEP, the Student “does not socialize with his peers...does not typically add to conversations or seek social interaction” (Ex. 1-4). The Student’s “language deficits combined with low self-esteem, depression, and anxiety are likely contributing to social isolation” (Id.).

[Redacted] does not offer Speech-Language therapy, Occupational Therapy, or Counseling to this Student (Tr. 99, 15-25; Tr. 100, 1-21). According to the IEP, which cites an outside Speech and Language Report, the Student’s “language skills are below average and developmentally inappropriate for his chronological age...Findings from these standardized assessments indicated diagnoses of a Mixed receptive –expressive language disorder and Phonological disorder” (Ex. 1-1). When asked how [Redacted] addressed this via the recommended Speech-Language therapy, the [Redacted] witness deferred to the Parent (Tr. 99, 15-18) The Parent explained that they unilaterally obtained Speech services for the Student separate from [Redacted] (Tr. 114, 20-22).

The [Redacted] witness explained that the Student had “made slow progress” at [Redacted] and the Student’s parents receive daily academic narratives and monthly progress reports (Ex. BB-7, para.38, 39). If these narratives and progress reports exist for the student, nothing of the sort for the 2020-2021 school year is part of the hearing record. Neither the [Redacted] witness nor the Parent could pinpoint the extent of the Student’s alleged progress at [Redacted]—apart from estimating that he began [Redacted] in September 2019 about three years below grade level and is at about two years below grade level at the time of the hearing (Tr. 89, 2-Tr. 90, 9; Tr. 94, 3-8).

The unrefuted IEP includes goals related to Counseling, Speech-Language Therapy, math, writing, and reading (see generally Ex. 1). The Student’s specific reading goals include learning to apply “syllabication strategies in context to improve multisyllabic word reading and writing” and “after listening to a grade level text or reading a text on his independent reading level,” learning to “respond orally to analytical questions that require him to infer from explicit information, draw conclusions and identify the main idea in the text...” (Ex. 1-8). According to the [Redacted] witness, [Redacted] does not implement any reading methodologies and does not teach reading beyond general comprehension (Tr. 99, 7-14).

The 2019 neuropsychological evaluation for the Student notes the Student’s academic weaknesses in “decoding, reading comprehension, reading speed, written expression, spelling, and math word problems (Ex. M-1). The neuropsychologist made the following school based recommendations: consideration of placement in an Integrated Co-Teaching (ICT) classroom; continue IEP management needs; continued speech language therapy (as often as 5x a week); required “multisensory phonics model of teaching reading and spelling in a structured and systematic approach”; “requires an evidence-based reading program taught by a reading specialist or supervised by a reading specialist” (for example Read 180 or the Wilson Reading System); an evidence-based math program; and “counseling at school to cope with academic challenges and mood symptoms” (Ex. M-10, 11). Based on the record, [Redacted] is not implementing any of these recommendations.

I agree with the District that the record is insufficient with respect to the instruction actually provided to the Student by [Redacted] for the 2020-2021 school year, and whether any instruction was specifically designed to meet the Student’s needs. The only aspect clear in the record is that [Redacted] does not provide any of the related services that the Student needs. I find no basis in the record to agree with the Parents’ assertion in their closing brief that [Redacted] supports the Student’s “academics, emotional needs and remediation.”

I find that Parents’ arguments in their closing brief about the appropriateness of [Redacted] to be a rehash of the general statements made by Ms. [Redacted] in her affidavit, and I am not persuaded. Based on the foregoing I find that the Parent’s did not prove that the program at [Redacted] was appropriate for the Student and I find that the Parents have therefore failed to meet the second of the three Burlington/Carter criteria for tuition reimbursement.^[1]

COMPENSATORY EDUCATION

The Parents request, in the alternative, that the [Redacted] tuition be paid as compensatory education for the District’s failure to provide a FAPE for the 2020-2021 school year. This is a compelling argument, as one fact that is undisputed is that the District failed to provide any school whatsoever for this Student either prior to the start of the 2020-2021 school year, or at any time during the 2020-2021 school year, including during this proceeding. See transcript generally. I find that the District was provided adequate notice of this compensatory education request in the due process complaint. Ex. A13.

“The IDEA allows a hearing officer to fashion an appropriate remedy.” P. ex. Rel. Mr. and Mrs. P. v. Newington Bd. Of Ed., 546 F.3d 111 (2d Cir. 2008). The Second Circuit has determined that “[a]ppropriate relief is relief designed to ensure that the student is appropriately educated within the meaning of the IDEA.” Newington Bd. Of Ed., 546 F.3d 111. Within the Second Circuit, compensatory relief in the form of supplemental special education or related services has been awarded to such students if there has been a denial of a FAPE. See Newington, 546 F.3d at 123. Further, “an award of additional services should aim to place the Student in the position he or she would have been in had the district compiled with its obligations under the IDEA. (see Newington, 546 F.3d at 123).” (emphasis added). SRO 13-048. IHOs are granted broad authority...to determine the type of relief which is appropriate considering the equitable factors present and those which will effectuate the purposes underlying IDEA.” SRO 12-033. The IDEA itself gives hearing officers broad authority and discretion to order appropriate relief. 20 USC 1415(i)(2)(C)(iii) (“basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate.”). Furthermore, compensatory education and services have been held to “carr[y] a qualitative rather than quantitative focus.” Reid v. District of Columbia, 401 F.3d 516 (D.C.Cir. 2005).

I am not sure what the District expected the Parents to do here, after the District created an IEP and never proposed a school location. The District in its closing brief ignored this issue, but I cannot.

I find that the District’s funding for the Student’s attendance at a school is reasonable compensation when the District has recommended no school, as that will approach placing “the Student in the position he or she would have been in had the district compiled with its obligations under the IDEA.” (see Newington, 546 F.3d at 123).” (emphasis added). There is no evidence to refute the fact that that the Student attended [Redacted] and made some progress. Exs. AA, BB.

I find that the evidence shows that the cost of attendance at [Redacted] for the 2020-2021 school year, which includes optional Mastery and tutoring/mentoring sessions, to be $88,765.00. Ex. H. While the Parents failed to prove that [Redacted] was an appropriate Burlington/Carter placement, possibly because of misplaced reliance on a previous Findings of Fact and Decision (FOFD) in case number 189547, for this Student for the 2019-2020 school year which found that the school was appropriate. I find that nonetheless the Parents had little reasonable choice than to have the Student re-enroll at [Redacted], especially after the previous FOFD. If the District did not wish to fund the cost of a private unilateral placement for the 2020-2021 school year, it was incumbent on the District to, at the very least, offer the Student a school for the 2020-2021 school year. It did not.

A parent must act with a high level of “unreasonableness or misconduct” in order to raise an equitable bar to relief. N.R. ex rel. T.R. v. Department of Educ. of City School Dist., 2009 WL 874061 (S.D.N.Y.). In the absence of evidence demonstrating that the parents failed to cooperate with the CSE, or otherwise engaged in conduct that precluded the development of an appropriate IEP, equitable considerations generally support a remedy sought by parent. Id. Moreover, the notion of equities requires a balancing of both parties’ conduct and interest. Wolfe v. Taconic Hills Central School District, 167 F.Supp.2d 530 (N.D.N.Y. 2001); SRO No. 04-045 (balancing the cooperation of the parents and the significant extent to which district failed to offer a FAPE, reimbursement was awarded).

In this case the evidence established that the Parents did not take any action that prevented or thwarted the District’s efforts to offer a FAPE. There was no evidence of a lack of cooperation on her part. On the contrary, the Parent attended the 2020 IEP meeting for the Student, she provided his teacher reports to the CSE in advance of the meeting. Tr. AA, 1. Further, the Parent requested that the CSE provide a program for students with Dyslexia and supports for her son, who was struggling. Ex. AA.

Based on the foregoing, I find that:

• • The District failed to provide or offer a FAPE for this Student for the 2020-2021 school year;
• • The Parents failed to establish [Redacted] was an appropriate special education placement for this Student for the 2020-2021 school year;
• • The Parents established that appropriate compensatory education for the District’s failure to provide a FAPE and failure to offer any school for the 2020-2021 school year would be District funding for the Student’s attendance at [Redacted] for the 2020-2021 school year; and
• • Equitable considerations support the Parents’ request for compensatory education comprising tuition payment by the District to [Redacted] for the 2020-2021 school year.

ORDER

Accordingly, it is hereby ORDERED that the New York City Department of Education is directed to pay directly to [Redacted] the amount of $88,765.00, representing the cost of the Student’s attendance for the 2020-2021 school year, within 30 days of receiving a detailed invoice from [Redacted]; and it is further

ORDERED that any other relief requested in the due process complaint is deemed withdrawn and is denied with prejudice.

Dated: August 15, 2022

______________________________

Mitchell Regenbogen, Esq.

Impartial Hearing Officer

Appendix of Attendees (by telephone)

For the Parent:

[Redacted], Esq.

[Redacted], Witness

[Redacted], Parent

For the District:

[Redacted], 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.

Footnotes

[1] The District goes into great detail asserting in its post hearing brief that tuition reimbursement should be denied because the [Redacted] enrollment contract does not obligate the Parents to pay the tuition. I am baffled by, and discard, that position, as a contract provision cited by the District states specifically that “the Client is responsible to pay for ALL tuition, tutoring, and mastery sessions not paid by the School District.”