New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 546893 - NYC: 203425

FINDINGS OF FACT AND DECISION

Case Number: 203425

Student’s Name: [REDACTED] [REDACTED]

Hearing Requested By: Parent

Dates of Hearing: October 22, 2021

December 6, 2021

January 21, 2022

February 17, 2022

March 16, 2022

April 28, 2022

Actual Record Close Date: May 13, 2022

Hearing Officer: Jean Marie Brescia, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

October 22, 2021 For the Parent:

[REDACTED], Esq.

For the Department:

[REDACTED], District Representative

December 6, 2021 For the Parent:

[REDACTED], Esq.

For the Department:

[REDACTED], District Representative

January 21, 2022 For the Parent:

[REDACTED], Esq.

For the Department:

[REDACTED], District Representative

February 17, 2022 For the Parent:

[REDACTED], Esq.

For the Department:

[REDACTED], District Representative

March 16, 2022 For the Parent:

[REDACTED], Esq.

For the Department:

[REDACTED], District Representative

April 28, 2022 For the Parent:

[REDACTED], Esq.

[REDACTED] [REDACTED], Parent

[REDACTED], School Principal For the Department:

[REDACTED], District Representative

On October 15, 2021, I was designated as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1415(j), in the matter of [REDACTED] [REDACTED], after the appointment of another hearing officer was rescinded. [REDACTED]’s parent requested the hearing on November 2, 2020 in order to challenge the Department of Education’s failure to offer [REDACTED] a free appropriate public education for the 2019-2020 school year and to seek reimbursement for tuition at [REDACTED], a non-public special education program, for the 2019-2020 school year. Ex. A.

A pre-hearing conference was conducted on October 22, 2021. The case was continued on December 6, 2021, and January 21, February 17, and March 16, 2022, in order for the parties to pursue settlement. The hearing on the merits was conducted on April 28, 2022. The Department rested its case without offering any documents in evidence or the testimony of any witnesses. Tr. 42-43.

The parties made joint applications on the record for extensions of the compliance dates. The applications were granted by written Orders of Extension dated October 22 and December 6, 2021, and January 21, February 17, March 16, and April 28, 2022.

The record closed on May 13, 2022, upon the hearing officer’s receipt and review of the transcript of the last hearing date, and the Actual Record Close Date is May 13, 2022.

Appended to the record are the names of the persons who appeared at the hearing and a list of the documents entered into evidence.

Findings of Fact

• • [REDACTED] is a now [REDACTED]-year-old girl whose disability, for the purposes of the IDEA, is classified as autism. Ex. A.
• • [REDACTED] experiences significant language delays which impact all facets of her development. Her challenges in receptive and expressive language (in both REDACTED and English) with her difficulties in articulation make it hard for others to understand her. Her inability to be understood, and to understand what is going on around her, causes her frustration and impedes her academic progress. She also struggles with social skills, attention and focus, fine motor skills, sensory issues, and academics. Tr. 55-56, 62, 69; Ex. J at ⁋⁋ 14, 15, Ex. K at ⁋ 3.
• • [REDACTED] attended a bilingual REDACTED center-based preschool. Ex. K at ⁋ 4.
• • The DOE convened an IEP meeting on February 26, 2019. The CSE recommended a bilingual REDACTED 12:1:1 special class in a community school. [REDACTED]’s mother participated in the meeting and expressed her concerns about the size of the recommended class. Tr. 66-67. Ex. K at ⁋ 5.
• • The DOE offered [REDACTED] a school placement at P. 396 at 289. [REDACTED]’s mother telephoned the school and was informed that the school did not have a bilingual REDACTED class, as mandated by the IEP. Tr. 67-69; Ex. K at ⁋ 6..
• • [REDACTED] has attended the [REDACTED] program at Bais Sara since September 2019. Ex. J at ⁋ 10. During the 2019-2020 school year, [REDACTED] was enrolled in [REDACTED] at [REDACTED]. Tr. 52. She is a bilingual REDACTED student. Ex. J at ⁋ 13.
• • [REDACTED] is a program that operates self-contained special education classrooms in mainstream religious schools in Brooklyn. Exs. H, J at ⁋ 4. [REDACTED] personnel develop an individually tailored program for each student to address the student’s special education needs. Ex. J at ⁋ 4. Students are grouped in classes based upon academic, social and learning needs. Ex. J at ⁋⁋ 7, 20.
• • The [REDACTED] program in which [REDACTED] was enrolled during the 2019-2020 school year included 50 students Tr. 52.
• • [REDACTED]’s class included four students, two special education teachers and classroom assistant. Tr. 53; Ex. J at ⁋ 17-18. The class was taught as a bilingual REDACTED classroom. The students are REDACTED dominant and required that new skill be taught in REDACTED and then supported with English instruction. Ex. J at ⁋ 19.
• • The small class size permitted [REDACTED] to receive the attention and 1:1 support that she required to help her focus on learning, and to have material broken down and receive constant prompting and teacher support. Ex. J at ⁋ 21.
• • [REDACTED] was at a “readiness”/pre-[REDACTED] level in reading skills in September 2019. Tr. 53-54. The other students in the class were also at a pre-[REDACTED] level. Tr. 54. At the beginning of the school year, she did not know REDACTED or English letters or the corresponding sounds of the letters. In class, her teachers provided her with instruction on letters and phonemic awareness; with repetition and using a multisensory approach. [REDACTED] learned the REDACTED alphabet and sounds and started to learn how to isolate sounds in short words. Tr. 58; Ex. J at ⁋ at 22.
• • [REDACTED]’s teachers also worked with her on developing listening comprehension by reading her stories and working with her to answer simple “wh” question and practice her ability to recall information. Ex. J at ⁋ 23.
• • By the end of the school year, [REDACTED] had progressed to a mid-[REDACTED] level of reading skills. Tr. 59.
• • [REDACTED] started the school year with very delayed pre-writing skills. Her teachers and occupational therapist worked with her to develop her fine motor skills, including the prerequisite skills for writing, and she made progress in her pre-writing skills. Ex. J at ⁋ 24.
• • At the beginning of the school year, [REDACTED] did not have any number concepts or understanding of one-to-one correspondence. Tr. 54;. Ex. J at ⁋ 25. She was at a pre-[REDACTED] level in math. Tr. 55. Her classmates were on the same level. Tr. 55.
• • In math, [REDACTED] worked on one-to-one correspondence and made progress placing her at a beginning [REDACTED] level. Tr. 59;. Ex. J at ⁋ 25.
• • [REDACTED] needed one-to-one prompting, one-to-one repetition and review, multisensory approaches and a structured environment with clear expectations in order to learn academics and to engage in social interactions. Tr.56-58; Ex. J at ⁋ 15..
• • [REDACTED]’s [REDACTED] program also emphasized play skills and social skills, areas of delay for [REDACTED].. Ex. J at ⁋ 26. As the school year progressed, [REDACTED] was more communicative with peers and willing to play with her peers.. Ex. J at ⁋ 28.
• • [REDACTED]’s schedule included breakfast, Language Arts, sensory centers, lunch, outdoor play, daily routine and calendar, math, science, play centers, snack/read aloud and related services. Meal times were instructional (using utensils, making requests, social skills). Tr. 63; Ex. F.
• • [REDACTED]’s class schedule also included prayer and bible studies. Tr. 60; Ex. F. Approximately 86 percent of the school week was spent on secular subjects. See Exs. F,. Ex. J at ⁋ 33.
• • [REDACTED] provided [REDACTED] with speech-language therapy (two 30-minute sessions per week) and occupational therapy (one 30-minute session per week). Tr. 61; Ex. E.
• • Speech therapy and occupational therapy were provided by licensed therapists. Ex. E.
• • Speech therapy focused on receptive and expressive language, vocabulary, articulation, following directions and improving attention. She made progress in these areas. Ex. J at ⁋ 30.
• • Occupational therapy focused on sensory processing, attention, visual motor integration, ocular motor skills, visual perceptual skills, fine motor skills and motor planning delays. The OT coordinated with [REDACTED]’s classroom teacher, and [REDACTED] made progress in developing her fine motor skills and sensory development. Ex. J at ⁋ 31.
• • The principal of [REDACTED]’s [REDACTED] program opined that [REDACTED] made progress during the 2019-2020 school year because [REDACTED] provided her with small classes, intensive support, and an individualized approach to learning and the curriculum addressed her particular needs.. Ex. J at ⁋ 38.
• • [REDACTED]’s mother observed that, during the 2019-2020 school year, [REDACTED] improved her language skills and began to interact more with other people. She also learned letters, became more confident and reduced her anxiety. Tr. 71-72.
• • On August 25, 2019, [REDACTED]’s parents entered into an enrollment contract with [REDACTED]. Tuition for this time period was $63,480.00, and [REDACTED]’s parents are obligated to pay this amount. Tr. 70; Exs. C, D, K at ⁋ 13.
• • [REDACTED]’s parents have not paid any amounts towards the tuition. Ex. D.
• • [REDACTED]’s parents are unable, at this time, to pay the full tuition. Tr. 70; Exs. E, H, G, K at ⁋ 14.
• • [REDACTED]’s mother submitted a ten-day notice letter to the DOE on June 19, 2019. Ex. B.

Decision

A board of education may be required to pay for education services obtained for a child by the child's parents if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. School Committee of the Town of Burlington v. Department of Education, 471 U.S. 359 (1985). The fact that the school selected by the parents is not approved as a school for children with disabilities by the State Education Department (as in the instant case) is not dispositive of the parents’ claim for tuition reimbursement. Florence County School District v. Carter, 510 U.S. 7 (1993).

The central purposes of the IDEA are to ensure: (1) that students with disabilities have available to them a free appropriate public education 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 their parents are protected. 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 U.S. 49, 51 (2005); Board of Education v. Rowley, 458 U.S. 176, 179-181 (1982). The first step in the inquiry is to determine whether the school district offered a free appropriate public education to the student. See, e.g., Application of a Child with a Disability, Appeal No. 07-008; Application of a Child with a Disability, Appeal No. 06-121. A free appropriate public education includes special education and related services designed to meet the student’s individual needs, provided in conformity with a written IEP. See 20 U.S.C. §1401(9); 20 U.S.C. §1414(d).

A school district offers a student a free appropriate public education when (1) it complies with the procedural requirements of the IDEA and (2) the IEP developed by the district must be “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 999 (2017); see also Rowley, 458 U.S. at 207; 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). 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. The school district also must ensure that “[t]o the maximum extent appropriate, children with disabilities are educated with children who are not disabled” that is, in the student’s least restrictive environment. 20 U.S.C. § 1412(a)(5)(A); 8 NYCRR 200.1(cc), 200.6(a)(1); see M.W. ex rel. S.W. v. New York City Dep’t of Educ., 725 F.3d 131,143 (2d Cir. 2013).

The particular educational needs of a student with a disability and the services required to meet the needs must be set forth in a written IEP. Honig v. Doe, 484 U.S. 305, 311 (1988); 20 U.S.C. § 1401(9)(D); see 20 U.S.C. § 1414(d); 34 C.P.R. § 300.320. An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs. 34 C.F.R. 300.320 (a)(1); 8 N.Y.C.R.R. 200.4(d)(2). The CSE then must establish annual goals related to the identified needs of the student and provide for the use of appropriate special education services in the IEP. 8 N.Y.C.R.R. 200.4(d)(2)(iii), (v).

In New York, the school district bears the burden of proof in 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. N.Y. Educ. Law § 4404(1)(c); see R.E., 694 F.3d at 184-85.

Did the Department Offer [REDACTED] a FAPE?

Since the Department did not offer any evidence in support of its program for [REDACTED], the Department did not carry its burden of proof and cannot prevail on the first “prong” of the Burlington/Carter test.

Is [REDACTED]’s Program Appropriate for [REDACTED]?

The parent bears the burden of proof concerning the appropriateness of [REDACTED] for [REDACTED]. See, e.g., Frank G. v. Board of Education of the Hyde Park Central School District, 459 F. 3d 356, 364 (2d Cir. 2006), cert. denied, 128 S. Ct. 169 (2007). To meet this burden, the parent must show that the educational services provided at [REDACTED] addressed [REDACTED]'s identified special education needs. See C.F., 74;6 F.3d at 82; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 837 (2d Cir. 2014); R.E., 694 F.3d at 187; G.B. and L.B. on behalf of N.B. v. Tuxedo Union Free School District, 09-CV-859 (S.D.N.Y Sept. 30, 2010); Application of the Bd. of City School District of the City of New York, Appeal No. 95-79, at pp. 6-7; Application of a Child with a Disability, Appeal No. 96-1. The Second Circuit instructs that:

No one factor is necessarily dispositive in determining whether parents’ unilateral placement is “reasonably calculated to enable the child to receive education benefits.” Rowley, 458 U.S. at 207. 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.”

Frank G., 459 F. 3d at 364 (emphasis added); also Bd. of Educ. of the Wappingers Cent. Sch. Dist. v. D.M., 831 F. App’x 29, 78 IDELR 2 (2d Cir. 2020) (Summary Order).

Furthermore, as the Second Circuit held in R.E.: “parents may provide evidence that the child made actual progress at their chosen private placement to support the adequacy of that placement.” 694 F.3d at 187 n.3.

The preponderance of the evidence establishes that [REDACTED] provided [REDACTED] with an educational environment in which her identified special education needs were addressed, and she made progress. [REDACTED] addressed [REDACTED]’s needs as described in paragraphs 8 through 18 and 21 through 25 above. [REDACTED] made progress at [REDACTED] during the 2019-2020 school year, as described in paragraphs 11,13,16, 18, and 23 through 26 above.

At [REDACTED], [REDACTED] made progress across the range of her challenges, clearly demonstrating that [REDACTED] was an appropriate special education placement for her. See, e.g., T.K. v. New York City Dep’t of Educ., 810 F.3d 869, 878 (2d Cir. 2016) (unilateral program appropriate when it meets child’s needs and child makes progress); F.B. v. New York City Dep’t of Educ., 132 F. Supp. 3d 522, 555-56 (S.D.N.Y. 2015) (unilateral program appropriate when it provided instruction and related services individualized to child’s needs and which resulted in progress).

Considering the “totality of the circumstances” as required by the Second Circuit in Frank G., the evidence supports a finding that the program at [REDACTED] was appropriate for [REDACTED] for the 2019-2020 school year. As a result, [REDACTED]’s parents prevail with respect to the second Burlington/Carter criterion.

The Equities With respect to the third Burlington criterion, whether equitable considerations support the parent’s claims, the evidence establishes that [REDACTED]’s parent cooperated with the CSE by attending CSE meetings, communicating with Department personnel, expressing her concerns about the IEP and the proposed placement to the CSE and providing the requisite statutory notice. See, e.g., R.E., 694 F.3d at 185, 195; M.F. v. New York City Dep’t of Educ., 2013 U.S. Dist. LEXIS 79181 at *34-*35 (S.D.N.Y. June 4, 2013) (“equitable considerations” include parental cooperation with the school district, attending CSE meetings, and providing notice to the school district).

Furthermore, although [REDACTED]’s parents have paid not paid the [REDACTED] tuition, the debt for the full amount of the tuition is very real. [REDACTED]’s parents are unable to pay the total [REDACTED] total tuition up front and then seek reimbursement from the Department. A hearing officer may, where the other requirements of Burlington and Carter permit, order prospective payment because: (1) such payment is permitted by Connors v. Mills, 34 F. Supp. 2d 795 (N.D.N.Y. 1998); and (2) it would be patently unfair to extend the protections granted by the United States Supreme Court in Burlington and Carter only to those disabled children whose parents happen to have the financial wherewithal to “front” the private school tuition and subsequently seek repayment from the school district. Equitable considerations favor the award of relief to [REDACTED]’s parent. As a result, [REDACTED]’s parents prevail with respect to the third Burlington/Carter criterion.

In addition, the fact that [REDACTED] is an institution where religion is celebrated with the students does not, in itself, render the school an inappropriate special education placement nor bar tuition reimbursement to the parent. See Application of a Child with a Disability, Appeal No. 96-14. 86 percent of the school week is spent engaged in non-religious subjects, and an impartial hearing officer may grant tuition reimbursement for tuition that could reasonably be construed as not funding religious education. As a result, 86 percent of the tuition is subject to payment in this proceeding.

Therefore, for all the above reasons, it is ORDERED that:

The Department of Education shall fund [REDACTED]’s placement at [REDACTED] for the 2019-2020 school year. The amount of funding shall not exceed $ 54,592.80. The funding shall be reimbursement to [REDACTED]’s parents for any amounts they have paid to [REDACTED] and direct payment to [REDACTED] for any remaining balance.

Dated: May 22, 2022

______________________________

JEAN MARIE BRESCIA, ESQ.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the 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.

DOCUMENTATION ENTERED INTO THE RECORD

Letter

Date

Name of Document

# of Pages

A

11/1/20

DPC

3

B 6/19/19 Parent letter with receipt 2

C 19-20 Tuition contract 2

D 2/17/22 Payment affidavit 1

E 19-20 Provider affidavits 2

F 19-20 Daily class schedule 1

G 2019 1040 form 2

H 19-20 Program description 1

I 2020 Remote learning Plan 3

J 4/25/22 Affidavit 5

K 4/26/22 Affidavit 2