New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 549186 - NYC: 205576

FINDINGS OF FACT AND DECISION

Case Number: 205576

Student’s Name: [REDACTED] [REDACTED]

Hearing Requested By: Parent

Dates of Hearing: November 29, 2021

January 18, 2022

March 3, 2022

March 31, 2022

Actual Record Close Date: April 27, 2022

Hearing Officer: Jean Marie Brescia, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

November 29, 2021 For the Parent:

[REDACTED] [REDACTED], Esq.

For the Department:

[REDACTED] [REDACTED], District Representative

January 18, 2022 For the Parent:

[REDACTED] [REDACTED], Esq.

For the Department:

None

March 3, 2021 For the Parent:

[REDACTED] [REDACTED], Esq.

For the Department:

None

March 31, 2022 For the Parent:

[REDACTED] [REDACTED], Esq.

[REDACTED] [REDACTED], Parent

[REDACTED] [REDACTED], Director, [REDACTED] School For the Department:

[REDACTED] [REDACTED], District Representative

April 27, 2022 For the Parent:

[REDACTED] [REDACTED], Esq.

For the Department:

[REDACTED] [REDACTED], District Representative

On November 19, 2021, I was designated as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1415(f), in the matter of [REDACTED] [REDACTED] after the appointment of another hearing officer was rescinded. [REDACTED]’s parent (“Parent”) requested a hearing on January 6, 2021, challenging the Department of Education’s failure to offer [REDACTED] a free appropriate public education for the 2020-2021 school year and seeking funding for [REDACTED]’s tuition at [REDACTED] [REDACTED] at [REDACTED] (“[REDACTED]”), a private religious school located in [REDACTED], and continuation of transportation and related services. Ex A.

A prehearing conference was conducted on November 29, 2021. At the prehearing conference, Parent withdrew the claims for transportation and related services; therefore proceeding only on the claim for tuition funding. Tr. 3. The hearing on the merits was conducted on January 18, March 3, March 31 and April 27, 2022. The DOE was defaulted after not appearing on January 18 and March 3. IHO Ex. I; Tr. 24-26, 39. A representative of the DOE appeared on March 31, and the hearing proceeded with the Parent’s case. The DOE was permitted to offer four documents in evidence as background information. Tr. 69-70.

The parties made applications on the record for extensions of the compliance date. The applications were granted by Orders of Extension dated November 29, 2021 and January 18, March 3 and March 31, 2022. The record closed on April 27 2022 upon the hearing officer’s receipt of updated exhibits from the DOE, and the Actual Record Close Date is April 27, 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 [REDACTED]-year-old girl whose disability, for the purposes of the IDEA, is classified as intellectual Disability. Ex. 1 at 1.
• • [REDACTED] struggles with academics, focus and attention, memory, speech and language delays, and social skills. She requires constant repetition, modeling and 1:1 instruction in order to learn. Tr. 60, 65: Ex. E at ⁋⁋ 2-3; Ex. F at ⁋ 12.
• • [REDACTED] received services through Early Intervention and the DOE’s CPSE. Ex. E at ⁋ 4.
• • [REDACTED] attended kindergarten at the DOE’s [REDACTED]. School personnel asked that she repeat kindergarten, and she did so in an ICT classroom. Ex. E at ⁋ 5.
• • [REDACTED] remained at [REDACTED] through first grade; she continued to struggle and failed to progress. In September 2017, her parents enrolled her at [REDACTED]. Ex. E at ⁋⁋ 5-6. [REDACTED] is a special education school withing a mainstream school. Tr. 62.
• • The CSE convened on June 5, 2020 to develop an IEP for [REDACTED] for the 2020-2021 school year and recommended a 12:1:1 class for her. Tr. 64. [REDACTED]’s mother attended the meeting. Tr. 64; Ex. 1 at 24-25, 33.
• • At the IEP meeting, [REDACTED]’s mother informed the team of her concerns that a 12:1:1 class was too large for [REDACTED] and would not provide her the 1:1 support that she needed and that the behavioral needs of students in the DOE’s program were different than [REDACTED]’s needs. Ex. E at ⁋ 9.
• • [REDACTED]’s mother contacted the proposed school by telephone; personnel informed her that they could not give her any information over the phone and that she would have to visit the school. When she visited the school, security personnel informed her that the school was closed and would not let her in. Tr. 65; Ex. E at ⁋⁋ 11, 15.
• • Parent wrote to DOE personnel on June 17, 2020, expressing her concerns about the IEP 12:1:1 program and asking to speak to the staff at the DOE’s school placement. Ex. C.
• • Parent also wrote to school personnel seeking information. Ex. D.
• • [REDACTED]’s mother did learn that the DOE’s proposed school started with [REDACTED] grade; [REDACTED] was a [REDACTED] grader at the beginning of the 2020-2021 school year. Ex. E at ⁋ 12.
• • Parent send a ten-day notice letter to the DOE on August 17, 2020. Ex. B. In this letter, Parent reiterated her concerns about the DOE’s IEP for [REDACTED] and expressed her concerns about the proposed school. Ex. B.
• • [REDACTED] is a special education program within a mainstream school. Tr. 62; Ex. F at ⁋ 3. [REDACTED] students have mainstreaming opportunities. Ex. F at ⁋ 3.
• • During 2020-2021, there were 43 students enrolled in the [REDACTED] program. Tr. 48.
• • Each [REDACTED] student has an individually tailored program and appropriate inclusion opportunities during the school day. Each student has a Comprehensive Service Plan (“CSP”) outlining his or her program and goals. The CSP is used to track the student’s progress. Ex. F at ⁋ 5. The CSP is developed by a team of teachers and therapists and is reviewed during the school year to ensure that the student is meeting his or her goals. Ex. F at ⁋ 5. Staff developed and implemented a CSP for [REDACTED]. Ex. G.
• • At [REDACTED], students are grouped in classes by academic and social functioning. Ex. F at ⁋ 7. [REDACTED] was in such a class, with students in her age range with similar social needs who were appropriate social peers for her to develop her social skills. Ex. F at ⁋ 15.
• • During the 2020-2021, [REDACTED] was enrolled in a [REDACTED]-grade class at [REDACTED]; her homeroom class included six students and three teachers (a reading teacher certified in special education, a math teacher certified in special education, and a [REDACTED] studies teacher with a BA in special education). Tr. 47-48, 52, 56-58; Ex. D at ⁋ 6.
• • [REDACTED]’s program for [REDACTED] included group activities, reading and English Language Arts (decoding, phonics, sight words, writing, reading comprehension and overall language skills), math, computer use, [REDACTED] reading (secular instruction in [REDACTED] as a second language), and religious instruction and prayer. Ex. F at ⁋⁋ 18-20, 29, 31-33, 47.
• • Her reading class included two students; [REDACTED] was reading on a first-grade level (both decoding and comprehension. Tr. 48-49. By the end of the school year, [REDACTED] was reading at an end of first grade level. Tr. 49. The school assessed reading progress through teacher observation and the WADE assessment, which is part of the Wilson reading program. Tr. 50.
• • [REDACTED]’s progress in reading was dependent upon constant and consistent repetition and 1:1 instruction and support, which her reading teacher was able to provide in a group of two students. [REDACTED] made progress in decoding, sight words, spelling, reading sentences and reading comprehension, including answering “wh” questions, and writing. Ex. F at ⁋⁋ 21-27; Ex. G.
• • [REDACTED]’s math instruction was provided in a group of two students. She was functioning on a first-grade level in math; by the end of the school year, she was on an end of first grade level. Tr. 50-51. Progress was measured using the KeyMath assessment. Tr. 51; Ex. G.
• • [REDACTED] also required individualized and 1:1 support, with a great deal of repetition, in math, and received math instruction in a group of two students, where she made progress with addition and subtraction. Ex. F at ⁋⁋ 28-30; Ex. G.
• • [REDACTED] provided related services to [REDACTED]: counseling, occupational therapy, speech therapy, physical therapy, oral motor therapy, and sensorimotor group. Ex. F at ⁋⁋ 34-44.
• • [REDACTED] made progress in all academic areas and related services. Ex. F at ⁋ 49; Ex. G.
• • Religious instruction is included during the school day during prayer, Bible portion, [REDACTED]. Tr. 55-56. [REDACTED] reading class does not include any religious instruction. Tr. 51. The percentage of time spent on non-religious subjects was 83.80 percent. Ex. F at ⁋ 48; Ex. H.
• • Parents entered into a tuition contract with [REDACTED]. The tuition for the 2020-2021 school year was $102,000.00, and Parents are obligated under the tuition contract for this amount. Ex. I, J.
• • The secular portion of the tuition is $85,476.00. See ⁋ 25 above.
• • Parents seek direct funding of [REDACTED]’s [REDACTED] tuition due to the family’s income. Ex. E at ⁋ 21; Ex. L.

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).

A hearing officer may determine that a school district denied a student a FAPE based upon the district’s procedural errors in the development of the IEP, deficiencies in the substance of the educational program set forth in the IEP, or both. See L.O. v. New York City Dep’t of Educ., 822 F.3d, 95, 109 (2d Cir. 2016); see also 20 U.S.C. § 1415(f)(3)(E)(i); 8 N.Y.C.R.R. § 200.5(j)(5)(v). If a procedural violation is alleged, a hearing officer may find that a student did not receive an appropriate special educational program only if the procedural inadequacy: (1) impeded the student’s right to a free appropriate public education; (2) “significantly impeded the parents’ opportunity to participate in the decisionmaking process regarding the provision of a free appropriate education” to the student; or (3) “caused a deprivation of educational benefits.” 20 U.S.C. §1415(f)(3)(E)(ii); see also Application of a Child with a Disability, Appeal No. 07-007. Furthermore, “[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not.” R.E., 694 F.3d at 190; see also L.O., 822 F.3d at 123-124.

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.

At the hearing, the DOE did not present testimony with respect to its provision of FAPE to [REDACTED] for the 2020-2021 school year. As a result, it did not carry its burden of proof to demonstrate that it offered [REDACTED] a “program uniquely tailored to meet” her needs. Endrew F., 137 S. Ct. at 999; see also Rowley, 458 U.S. at 207. Since the Department did not carry its burden of proof, it does not prevail on the first “prong” of the Burlington/Carter test.

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] address [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] provides [REDACTED] with an educational environment in which her identified special education needs are addressed. First and foremost, [REDACTED] addresses [REDACTED]’s need for an individualized program with intensive 1:1 instruction and support with repetition and consistency in reading and math. She also needs, and [REDACTED] provides, a robust and comprehensive program of related services for her.

At [REDACTED], [REDACTED] has made progress across the range of her challenges, particularly in the areas of reading and math, clearly demonstrating that [REDACTED] is 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] is appropriate for [REDACTED] for the 2020-2021 school year. As a result, [REDACTED]’s parent prevails with respect to the second Burlington/Carter criterion as to [REDACTED] tuition and RSAs for related services.

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, 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 parent has paid only a very small portion of the [REDACTED] tuition, the debt for the tuition is very real. [REDACTED]’s parent is unable to pay the [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.

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. 83.80 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, 83.80 percent of the tuition is subject to payment in this proceeding.

Equitable considerations favor the award of relief to [REDACTED]’s parent. As a result, [REDACTED]’s parent prevails with respect to the third Burlington/Carter criterion.

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

The Department of Education shall fund [REDACTED]’s placement at [REDACTED] [REDACTED] at [REDACTED] for the 2020-2021 school year. The amount of funding shall not exceed $85,476.00 for the 2020-2021 school year. The funding shall be reimbursement to Parents for any amounts they have paid to [REDACTED] and direct payment to [REDACTED] for any remaining balance.

Dated: April 27, 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

New York City Department of Education

Exhibit List

Ex.

Description

Date

Pages

1

IEP

6/5/2020

33

2

Psychoeducational Evaluation

4/29/2017

3

3

PWN

6/15/2020

4

4

School Location Letter

6/15/2020

2

Impartial Hearing Officer Exhibit List

I

Email Chain various

2

Letter

Date

Name of Document

# of Pages

A

1/5/21

DPC

3

B 8/17/20 Parent letter with receipt 3

C 6/17/20 Parent email to school 1

D 6/18/20 Parent email to school 1

E 3/14/22 Parent testimony affidavit 2

F 3/23/22 School testimony affidavit 7

G 20-21 Progress report 27

H 20-21 Schedule 1

I 20-21 Tuition contract 1

J 1/19/22 Payment affidavit 1

K 20-21 Program description 1

L 2020 1040 tax form 2 Parents’ Exhibits