New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 550033 - NYC: 206366

FINDINGS OF FACT AND DECISION

Case Number: 206366

NYS Case Identifier Number: N/A

Student’s Name: [REDACTED]

Date of Birth: [REDACTED]

District: REDACTED

Hearing Requested by: Parent

Date of Hearing: 7/22/21

8/24/21

10/19/21

12/7/21

2/10/22

3/17/22

5/4/22

5/13/22

6/16/22

6/29/22

Record Close: 7/28/22

Hearing Officer: Nancy M. Lederman, Esq.

APPEARANCES ON JULY 22, 2021, AUGUST 24, 2021, OCTOBER 19, 2021, AND DECEMBER 7, 2021

For the Student: [REDACTED], ESQ., Attorney

For the Department of Education: [REDACTED],, ESQ., Attorney

APPEARANCES ON FEBRUARY 10, 2022

For the Student: [REDACTED], ESQ., Attorney

[REDACTED], Parent

For the Department of Education: [REDACTED], ESQ., Attorney

[REDACTED], Assistant Principal

[REDACTED], Special Education Teacher

[REDACTED],, School Psychologist

APPEARANCES ON MARCH 17, 2022

For the Student: [REDACTED], ESQ., Attorney

[REDACTED], Parent

For the Department of Education: [REDACTED], ESQ.,

APPEARANCES ON MAY 4, 2022

For the Student: [REDACTED], ESQ., Attorney

For the Department of Education: [REDACTED], ESQ.,

[REDACTED], ESQ.

APPEARANCES ON MAY 13, 2022

For the Student: [REDACTED], ESQ., Attorney

[REDACTED], Parent

[REDACTED], Head of School

For the Department of Education [REDACTED], ESQ.,

APPEARANCES ON JUNE 16, 2022

For the Student: [REDACTED], ESQ., Attorney

[REDACTED], Parent

For the Department of Education: [REDACTED], ESQ.,

APPEARANCES ON JUNE 29, 2022

For the Student: [REDACTED], ESQ., Attorney

[REDACTED], Parent

For the Department of Education: [REDACTED], ESQ., Attorney

[REDACTED], ESQ., District Representative

This case was brought before me pursuant to appointment by the New York City Department of Education (DOE) under the Individual with Disabilities Education Act (IDEA), 20 United States Code §1415(f)(1).

[REDACTED] ([REDACTED]) is a [REDACTED], -year-old student whose parent, [REDACTED], ([REDACTED], or parent) charged that the district had failed to provide the student with a free appropriate public education (FAPE) under federal and state law, and brought the instant hearing seeking funding for the child’s unilateral placement at the [REDACTED] for the 2020-2021 school year.

The hearing convened on July 22, 2021, August 24, 2021, October 19, 2021, December 7, 2021, February 10, 2022, March 17, 2022, May 4, 2022, May 13, 2022, June 16, 2022, and June 29, 2022.

PARENT AND DISTRICT POSITIONS

The parent’s due process complaint notice (DPCN) dated January 28, 2021 argued that the district had failed to provide the student with a FAPE, arguing that as of the date of filing the parent had not received a copy of the IEP for the 2020-2021 school year, that the IEP that was created did not address the child’s special education needs, that the recommended program was inappropriate, that the IEP did not address supports needed for a virtual setting, that there had not been sufficient or timely testing done or considered, that documentation provided by the parent had not been reviewed, that the parent’s request for a new IEP meeting had not been responded to, and that the placement identified in the location letter was not appropriate. As relief, the parent requested prospective funding for the student’s placement at [REDACTED], and transportation and related services. Ex. A.

At hearing on July 22, 2021, the district representative stated that the district would be providing evidence that the district had provided the student with a FAPE during the school year, and would be challenging the parent on the appropriateness of the unilateral placement and equities, a position that was confirmed in closing statements on June 29, 2022.

FINDINGS OF FACT

[REDACTED] described her daughter as funny and very social, able to communicate and make friends with people, but also sometimes socially inept, very concrete and unable to comprehend nuances. She often pushes boundaries and tests limits, and she doesn’t like change. Academically she has motor skills deficits; her coordination is off. When she went to kindergarten, her behavior issues began, which connected to academics. Her comprehension has gotten better, but her ability to receive information and write it down simultaneously has always been an issue. As things become more complex, they become more difficult for her, and applying what she has read to something else is difficult. [REDACTED] stated that you have to continue to repeat whatever is happening in show that is related to the next thing, so she doesn’t always make connections. She described that as a major part of [REDACTED]s academic weakness. [REDACTED] has issues with recalling basic rules, and needs constant reminders to capitalize letters. When things become difficult she gets very frustrated because she doesn’t like to make mistakes, which causes her to avoid things because of the difficulty she experiences. Tr. 320-360.

[REDACTED] described behavior issues emerging in kindergarten and first grade, and a diagnosis of OCD. She has been having IEPs since around first grade. By third grade there were many incidents, and a threat of self-harm which sent her to the ER. She went into a special education program at the [REDACTED] and was doing well, so for middle school she went into a regular education middle school. The classes were large, and the school decided to help her get into a nonpublic school, which is how first went to the [REDACTED] and then to [REDACTED]. She began with [REDACTED] in [REDACTED] grade, which has always been a 12 month program. [REDACTED] is currently in the [REDACTED] grade. Tr. 320-360.

IEP meeting, April 20, 2020. [REDACTED], a special education teacher working as a teacher assigned with the CSE, testified about her participation in the IEP meeting. She explained that the meeting was opened as a triennial. Tr. 121-178. [REDACTED] stated that she gathered the documents and submitted them in advance of the meeting. She was informed that [REDACTED] received the documents from [REDACTED] and also from her. Tr. 320-360. [REDACTED] confirmed receiving documents she requested from the parent 15 minutes before the start of the meeting, noting that other documents were forwarded to her by [REDACTED] who dealt directly with [REDACTED]. She noted the presence of people from the school who work with the student and administrator. Reports included teacher reports, and related service progress reports. [REDACTED] stated that she drafted the goals, based on present levels of performance, conversation with teachers, related service providers, and administrators about what they felt [REDACTED] needed to work on. Goals were discussed, and there was agreement with them; no one raised an objection. Tr. 121-178.

The IEP recommendation for [REDACTED] was for a 15:1 class in math, ELA, social studies, and science, 5 periods per week for each subject. Also recommended were related services of counseling once a week for 40 minutes as a group service, occupational therapy once a week for 40 minutes as an individual service, and speech-language therapy twice weekly for 40 minutes in a group and once weekly for 40 minutes as an individual basis. Ex. 1.

[REDACTED] stated that the meeting did not go well. She described the discussion as very routine, stating that it felt “very cookie-cutter.” She was trying to explain some of concerns she had, and when told of the determination that [REDACTED] would be in a 15:1 school, she asked why that would be given that she is now in the school with the largest class is six students. She was told it was because the student was turning 15, and they wanted the goal for her to go to a 2-year or 4year school. [REDACTED] said she pushed back, asking why would you take away things that are working, she doesn’t do well in big classes. Tr. 320-360. [REDACTED], head of [REDACTED], and other of [REDACTED]’s teachers from [REDACTED] who were present talked about why the school setting was necessary, based on her needs, and the fear of regression that was experienced even during the smaller breaks. They discussed that her need for a small class and the one-on-one attention that she was getting at the school, which were essential to how she learns and comprehends. There was talk about 12-months, the school size, and the length of the school day and services receiving while at the school. Tr. 230-310.

[REDACTED] stated that she had sent reports totaling approximately 100 pages, and questioned whether it was possible that they had actually reviewed them when she had been asked for the report only 15 minutes before the meeting. When she was asking for more, there was discussion about another family that was waiting for a meeting. She felt unheard and disregarded. Tr. 320-360. [REDACTED] also testified about participating in the IEP meeting. She also objected to the 15:1, as [REDACTED] had been in a much smaller classroom with much more needed support, due to language difficulties, memory recall, and her tendency to shut down when frustrated. She stated that as the parent and school team were in the process of voicing their concerns, they were told that the meeting needed to be wrapped as there was another meeting immediately following, and if the parent had any concerns when she receives the IEP, she can voice her concerns there, and the meeting ended. Tr. 230-310.

The IEP noted the parent and school concerns that [REDACTED] needed additional support, a smaller group size, an environment where she feels safe to express herself, and a 12-month program, noting expressed concerns about academic regression. Ex. 1. [REDACTED] explained the 15:1 program recommendation, stating that they didn’t think the student needed the level of support she was getting at [REDACTED], as it was too restrictive. They considered an integrated co-teaching (ICT) class, but thought she would need more support than that, especially coming from a school with a smaller teacher to student ratio. A 12:1:1 program was also considered, and rejected as too restrictive. [REDACTED] stated that the recommended 15:1 offered individualized support in terms of related services, and also through management needs, such as teacher check-in. They did not consider a nonpublic school setting, although the parent wanted the student with a deferral. She agreed that the last meeting for student was in 2017, and that student had previously been given a deferral to CBST for a nonpublic school recommendation, which was brought up as a parent concern. She stated that they felt this was a student who would be able to be successful in a small class size, and benefit from being in a community school with typically developing peers, and hopefully transition to less restrictive, eventually. [REDACTED] testified that she recommended a full-time 15:1 for the core subject areas, noting that [REDACTED] didn’t qualify for adaptive physical education (APE). She stated that for the other periods, it would depend on the school, “but it would typically be in the self-contained classroom as well.” [REDACTED] conceded that she never met the student and never taught in a 15:1 class. Tr. 121-178.

It was undisputed that there were no updated evaluations nor assessments conducted for [REDACTED]. [REDACTED] explained that triennials do not require new evaluations, and that evaluations can also be teacher reports. She said it is up to the school psychologist who determines whether new testing is needed. She did not know when psychological assessments were last conducted for [REDACTED], stating that she thought it was 2016 or 2017, when [REDACTED] was in [REDACTED] grade. According to [REDACTED], her cognitive intelligence would have been stable, unless there was some kind of major event. She had the same answer for classroom observations and language evaluations, that they were not necessarily a part of or requirement for a triennial. Tr. 121-178.

[REDACTED], a school psychologist with the DOE who had not participated in the IEP meeting also testified about the requirements for a triennial review for [REDACTED]. [REDACTED], who had held an IEP meeting for the student years before, had reviewed the student’s IEP and the academic progress report and related service reports for that academic year. [REDACTED] knew testing had been done prior to the 2017 IEP meeting in which she had participated. She stated that the documents she reviewed did not indicated that new cognitive testing was needed at the time at the meeting to provide information on the student’s needs and strengths, and to identify what she would need to be successful in the recommended program. Tr. 182-203.

On the subject of the recommended 10-month program, [REDACTED] stated that she looked at the psychoeducational prior to the meeting and there and was no evaluation in the record or anything presented at the IEP meeting that would suggest the student had an issue with regression during school breaks. Tr. 121-178. [REDACTED] also stated that her review of the documents indicated no information that was substantial enough to warrant a 12-month program. She described regression as taking a look at how much a student is able to retain skilled information, as well as the ability to apply that when learning new skills. She conceded that she was aware of the student was in a 12-month program at the time and there was discussion in the IEP about a 12-month program. She said she was unable to identify the severity of any indication of regression for [REDACTED] specifically that couldn’t be addressed by the 10-month program for the student, including needed supports of related services, management needs, and the 15:1 program that was offered. Tr. 182-203.

According to [REDACTED], none of [REDACTED]’s IEPs had recommended a 12-month program. She explained that [REDACTED] had ended up in a 12-month school after other public and nonpublic schools, and said that she hadn’t known that the length of the school year would be a significant factor that would be helpful until it happened. Asked about it being substantial, she said that the difference between what [REDACTED] experienced prior to attending a 12-month school and what she experienced after felt significant and substantial, in terms of frustration and making sure she was able to thrive. With small classes and 12-months, she described as substantial the difference considering what she did at [REDACTED] than what she did when she was in public school. Tr. 320-360.

[REDACTED] also testified that [REDACTED] required a 12-month program, noting her struggle with working memory. She explained that [REDACTED] was a 12-month program, noting that many of the students arrive after trying a 10-month program and recognizing that they need more ongoing support. She said with [REDACTED] that the more time she has when she's not actively working and getting support, the more difficult it sometimes is for her to recall information. She also has difficulty adjusting to routines, and benefitted from the consistency of the routine, which included the process to review information consistently before moving on. [REDACTED] stated that the most noticeable thing with [REDACTED] is that when she's out of routine, it takes her some time to get back into a routine, confirming that challenges would be significantly more impactful on her learning if it was for two months rather than two weeks. She confirmed the recommendation in the June 25, 2021 end-of-year report for [REDACTED] to continue in a 12-month program to prevent substantial regression during the summer months, stating there were elements on the reports that would warrant the need for ongoing academic and social/emotional instruction, although without identifying a specific statement. Tr. 230-310; Ex. F.

There was no further IEP meeting after the April 2020 meeting. Asked about the DPCN’s claim that the IEP did not discuss remote learning, [REDACTED] stated that they didn’t think it was going to be long-term at that point; it wasn’t until September 2020 that they started to address transition to remote learning in meetings. Tr. 121-178.

On April 28, 2020, [REDACTED] sent a letter to the CSE Chairperson expressing dissatisfaction with the meeting and requesting that a new IEP meeting be scheduled as soon as possible to fully consider the documentation and input concerning the student’s need for a smaller program than the recommended 15:1 placement and for a 12-month program. Another letter was sent on June 17, 2020, repeating the request for an IEP meeting, to which there had been no response. [REDACTED] explained that she sent the letter because of her dissatisfaction with the way the meeting went and there wasn’t enough time to fully discuss [REDACTED]s issues and what should be considered in making the decision. She emailed both times to ask for another meeting, and never received a response. Tr. 320-360; Exs. B, C. In testimony, [REDACTED] made several attempts to deny there was a request, and to restate the simple language in the parent’s correspondence, stating that she couldn’t answer the question about whether she was asking for a new meeting, stating that she thought it was that the parent didn’t like the recommendation and the team was in place to consider the documentation was submitted, and actually objecting and trying to refuse to answer the question. Tr. 121-178; Exs. B, C.

[REDACTED] School. [REDACTED] testified that she never received a copy of the IEP following the IEP meeting, until she received it in relation to the current litigation. She did receive a school placement form in late August 2020. She emailed the principal, who put her in touch with the assistant principal, [REDACTED]. They were engaged in trying to figure out when they could talk, because it was COVID. Tr. 320-360. [REDACTED], Assistant Principal for Special Education at [REDACTED] School [REDACTED], testified that she recalled speaking with the parent on the telephone in August 28, 2020, but did not recall specifics. The parent had a list of questions for the principal, who was unable to meet, questions related to school setting and curriculum. At the time, [REDACTED] was aware school would be offering a remote learning plan, but did not know specifics as to what it would entail. If the student needed to be fully remote, that was an option. Tr. 68-118.

There are three schools in the building. She stated that there is a school progress health science, which might have 300 students, a district 75 school, with 600 students, and 2100 in [REDACTED]; the school has 534 students with IEPs. She confirmed that was about 3,000 students in the building at one time. Tr. 68-118.

She stated that whether having more schools in the building presented challenges to students with disabilities would depend on the student. The [REDACTED], 40 periods per week. In the beginning of the 2020-2021 school year in September 2020, the school was open for in person learning, offering a blended model. Tr. 68-118. The school has general education classrooms with up to 34 students, the same staffing ratios in 2020-2021. In addition to ICT offerings and specialized self-contained 15:1 classrooms for students who are alternately assessed, the school has 15:1 classrooms for all grades. In addition to the special education teacher, there may be another adult in the classroom, depending on whether a student has a paraprofessional. The school has about five classes per grade level for the 15:1 classes. According to [REDACTED], placements were “generally done by the welcome center,” stating her belief they would have been able to accommodate a seat for [REDACTED] in the [REDACTED] grade 15:1 classroom beginning in the fall of 2020-2021. Students in a 15:1 classroom within between probably 14 to 16 years old. If the student was programmed for a 15:1, she would have received a departmentalized program, depending on the IEP, for different special education classes that were 15:1. Tr. 68-118.

There were at least 400 students in the [REDACTED] grade in the 2020-2021 school year, with as many as 100 students in a 15:1 program. [REDACTED] was recommended for 15:1, for 20 periods. Noting 40 periods per week at the school she explained that the student would be in other classes with one teacher with 34 students, possibly more for electives and physical education. She noted a music class, which could be up to 50 students, as well as physical education. There is no special education instruction or teacher at those times. She was not aware of whether [REDACTED] struggles in larger groups. Tr. 68-118.

Asked whether students were grouped with those with similar needs and disabilities or wide range, [REDACTED] said that it’s a combination of both. Curriculum is the same as that used in the general education curriculum, usually teacher created curriculum with scaffolding for the students. The overall goal is for them to receive credit and successfully complete [REDACTED]. She noted students able to socialize were able to interact in departmentalized classes, as well as in participation in other activities and classes and mainstreaming opportunities in physical education classes and lunch periods. Tr. 68-118.

[REDACTED] never met the student, and only spoke with the parent that time. She understood [REDACTED] found it difficult to engage in certain tasks at times. She did not have knowledge as to how [REDACTED] did with remote learning. She acknowledge the IEP was created during the remote learning period, but stated it was not done with “our committee.” Asked about goals, she said she was not sure how some goals would been implemented, noting the first goal relating to work refusal or avoidance. Asked if the school could address identified deficits in the IEP, she stated, “I believe there is a possibility we could have.” She noted scaffolding by teachers, with students to meet goals with a have a deficit. She also stated that she believed they could implement the goals, although she had a few questions for some of them. Asked if the school program could have provided an educational benefit, she stated that it depends, but from reading the IEP, it seems as though the program may have been able to meet her needs. Tr. 68-118; Ex. 1.

[REDACTED] was told that there was some classes that would fall under special education and be small classes, but they were regular general education classes with as many as 30 children. [REDACTED] stated that her issue was the class size and the number of periods that [REDACTED] would have was significantly less than what she needed in terms of the curriculum and one-on-one attention. By a third letter to the CSE Chairperson, dated September 22, 2022, [REDACTED] explained that she had received a school location letter (although still not having received an IEP created as a result of the April 20, 2020 meeting), and detailing various concerns about the school and program following her discussion with [REDACTED], including how remote instruction would work for [REDACTED]. There was no information about how the school year was going to go during the pandemic. She stated there were no additional teachers in the class that [REDACTED] would be in, just paras for other students, so [REDACTED] would have to navigate those classes on her own, and considering she had come from classes of only six or seven kids to a school that was particularly large that was especially considering. [REDACTED] said that no one responded to this letter either. Tr. 320-360; Ex. D.

[REDACTED]. [REDACTED] described [REDACTED] as a 12-month school K through 11th grade for students age 5 through 19 with speech and language delays and other learning disabilities. They all require small group instruction and a small school environment, providing a multisensory approach to learning and frequent individualized support and attention. There were 56 students were in the school in the 2020-2021 school year. There are typically six students in a classroom with a certified head teacher and an assistant teacher, assistant teachers must have a bachelor's degree. Each class is also assigned speech and language pathologist. Students in a homeroom class are grouped based on age and grades, but all academic and therapeutic classes are grouped by skill-based ability and developmental levels. Curriculum is aligned around state standards, with different curriculums for different students. The school also offers occupational therapy, speech therapy, and counseling. Tr. 230-310.

She described [REDACTED] as friendly, eagerly engaging with peers and teachers once she gets comfortable with them. In academic classes, she has difficulty when she has to respond to situations or material that she's not familiar with or requires her to use some higher level cognition. She easily shuts down when she feels that work is too challenging or difficult, requiring a lot of academic support and social/emotional support to build her confidence in trying different things. She struggles with working memory, and gets stuck doing independent work where she has to transfer or generalizes what she was learning, needing support and scaffolding to help her continue. [REDACTED] described [REDACTED] as having challenges with cognitive flexibility, noting the avoidance tactic she employs when unable to automatically recall information such as math facts in order to solve more complex problems, She also noted issues with executive functioning related to working memory, causing [REDACTED] to need a lot of help organizing her materials. Tr. 230-310.

There are six students in [REDACTED]’s homeroom class, and only three students in her academic classes. [REDACTED] described the importance of ongoing assessment to see what skills she has been able to retain and what areas need to be targeted. Visuals are used to provide needed reminders. For independent work, she required frequent teacher check-ins. The distance learning plan for the school year continued instruction in core academic subjects, providing synchronous instruction during the school day. With only three students in her academic grouping, [REDACTED] had additional opportunities to work one-on-one with her teachers and therapist remotely, with frequent check-ins on executive functioning organization. Tr. 230-310.

[REDACTED]’s ELA class is taught by a certified special education teacher. Work was on improving her reading fluency, developing comprehension skills, answering higher-level questions, and expanding her vocabulary. The speech pathologist of her ELA class teaches her writing class (in addition to her individual sessions). A lot of the work addresses her recall and her organization, using visuals, scaffolding, and graphic organizers to help her make connections. In writing she worked on areas similarly to those in ELA. Her writing class was taught by her speech provider, as she needed much help with organization and also they used a specific curriculum that was sequential and has a lot of visual supports to help. She worked on sentence structure, writing a cohesive paragraph, responding to information in text. In math, she worked on some algebraic expressions and variables, continuing to build her automaticity in recalling math facts and trying to improve her overall math functioning. [REDACTED] also had an advisor, for support with organization or other issues that came up, she could speak to the advisor. Tr. 230-310.

Asked about [REDACTED]’s progress during the school year, [REDACTED] noted increased confidence in her ability to share in a group. With the allotted additional time to work with her, she was able to make deeper connections participating verbally, and her reading fluency increased, although still a work in progress due to her difficulty recalling patterns that would help her with unfamiliar words. In math she was able to grasp a lot of the concepts that were introduced, although struggling on transfer that and work with faded support. She also made progress in her ability to write. Her responses got longer, moving from two to three or four sentences. She made progress socially and emotionally. [REDACTED] and many of the students became closer, able to talk about feelings and concerns during a difficult time. [REDACTED] noted that because she was remote, [REDACTED] had to connect with her teachers as well as her peers using technology and she was able to do that. Tr. 230-310.

[REDACTED] stated that her daughter still struggles in terms of academic performance, but her confidence level, and her ability to speak publicly and overall adjustment to change has improved. She attributes her progress to the class attention, and the small classes, as well as the modified curriculum, which meets her where she is cognitively, as well as the additional services that she receives. She stressed the focus of individual staff on [REDACTED]s individual needs and help to be better able to assist her. Tr. 320-360.

Contract. The contract for [REDACTED]’s attendance at the [REDACTED] for a 12-month academic year of 2020-2021 school year was for a total fee of $110,000. Notification that the child would be attending a public school prior to July 1, 2020 authorized release of the parent’s obligation under the contract. A partially redacted bank statement indicated payment of $100, and an affidavit from the school indicating payment of a non-refundable $100 fee, leaving a balance of $109,900. Exs. I, J, K.

[REDACTED] explained that she signed the contract in May 2020 to make sure that her daughter had somewhere to go to school. She didn’t know when she was going to hear back about a placement, and she knew that if she found a placement by a certain time, which she thought was July, she could withdraw from the contract. She understood that she was financially responsible for the complete tuition. She explained her understanding that the school would essentially wait for payment on the decision in the instant case. She submitted her tax return to support her request for payment. She stated that if the DOE had recommended an appropriate placement, she would have looked at it and absolutely considered it. She stated that private school is not free, and as a single parent, it’s not something she can easily afford. She stated that if she could get what she needs, and not have to absorb the cost to go along with her being sent to the school, she would pick that option. Tr. 320-360; Ex. O.

CONCLUSIONS OF LAW

The decision in this case rests on a determination of the three-pronged test set forth by the United States Supreme Court in the Burlington case, which provided that a board of education may be required to pay for educational services obtained for a student 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. Dept. of Educ., Massachusetts, 471 U.S. 359 (1985); Florence County Sch. Dist. Four v. Carter, 510 US 7 (1993).

ISSUE 1 - Appropriateness of School District Program

A central purpose of the Individuals with Disabilities Education Act (IDEA) is to ensure that students with disabilities have available to them a free appropriate public education (FAPE). 20 U.S.C. § 1400(d)(1)(A); see Schaffer v. Weast, 126 S. Ct. 528 (2005); Bd. of Educ. v. Rowley, 458 U.S.176 (1982); Frank G. v. Bd. of Educ., 459 F.3d 356 (2d Cir. 2006). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP, which is reasonably calculated to enable the student to receive educational benefit. See Bd. of Educ. v. Rowley, 458 U.S.176 (1982); 20 U.S.C. § 1401(9)(D); 34 C.F.R. § 300.17; see 20 U.S.C. § 1414(d); 34 C.F.R. § 300.22. The student's recommended program must also be provided in the least restrictive environment (LRE). 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. § 300.114(a)(2); 8 NYCRR 200.6(a)(1).

In this case I find that the DOE has failed to sustain its burden.

To start, I discount some of the parent’s claims, as follows: I discount the parent’s claim that documentation provided by the parent had not been reviewed. I credit [REDACTED]’s testimony that she reviewed the documents she requested, noting that the documents had been sent to the school psychologist [REDACTED], who participated in the meeting (and who had since retired). The testimony of the parent doubting the documents had been reviewed was merely speculation, based on the number of documents and the little time the teacher had to review them.

I also discount the claim that the IEP did not address supports needed for a virtual setting, I credit [REDACTED]’s testimony that at the time of the IEP meeting, in April 2020, no one was aware of remote instruction to be held in the following school year.

As for the remaining claims in the DPCN, the district did not prevail in showing it had provided the student with a FAPE. I begin with the claim that as of the date of filing the parent had not received a copy of the IEP for the 2020-2021 school year. The district offered no evidence to counter the claim, and I credit the undisputed testimony of the parent that she never received the IEP until the instant hearing. I note also her letters sent in June and September of 2020 asserting she had not received the IEP, without response from the district.

I also credit the parent’s claims that the IEP that was created did not address the child’s special education needs, and that the recommended program was inappropriate. The IEP specifically said 15:1 for four core subjects only, for a total of 20 periods weekly, as acknowledged by [REDACTED]. She was under the belief that for the other periods, it would depend on the school, further stating “but it would typically be in the self-contained classroom as well.” Her credibility in this regard was unreliable. [REDACTED] was admittedly unfamiliar with and had no experience in a 15:1 class. As [REDACTED], the high school’s assistant principal, testified, the student would have been in several classes with 34 students, and more in electives and physical education, perhaps as many as 50 students.

The DPCN claim that there had not been sufficient or timely testing done or considered provided additional evidentiary support discounting the district’s efforts in providing an appropriate program for the student’s special education needs. While I agree with the district argument that a triennial does not necessarily require additional testing, there was no reasonable argument that elimination of a 12-month program the student had been in for several years wouldn’t require some assessment. The IEP noted the parent and school concerns that [REDACTED] needed additional support, a smaller group size, an environment where she feels safe to express herself, and a 12-month program, noting expressed concerns about academic regression even during the smaller breaks. The district witnesses uniformly dismissed those concerns, stating there was nothing in the record to suggest regression during school breaks, without consideration of the fact the student was in a 12-month program. [REDACTED] stated that an evaluation would be needed to show that changing from a 12-month program might cause regression. Regulations are clear warranting a 12-month program only for eligible students requiring a structured learning environment to prevent substantial regression due to loss of skills or knowledge during July and August. 8 NYCRR §§200.1(aaa), 200.1(eee). Yet the district did not even conduct any evaluation to assess the likelihood of regression, not even a classroom observation to see how she did with the constant repetition and remainders in the small three- and six-person classes she was in. The complete absence of any current clinical data left the recommendation for a 10-month program wholly unsupported.

There was no disputing the fact that the parent requested an IEP meeting and received no response from the district to any of her requests. Most disquieting was the absence of response to her request in September 2020, when faced with the uncertainty of remote instruction for her daughter. As [REDACTED] testified, September 2020 was when the DOE began to address transition to remote learning in meetings. I discount entirely her testimony that the plain meaning of the letter requesting a meeting was not a request for a meeting.

Finally, the evidence supported the parent’s claim that the placement identified in the location letter was not appropriate. As noted by [REDACTED], the school has 40 periods per week, only 20 periods in which [REDACTED] would be in a class with only 15 students and a special education teacher. The rest of the classes would be with as many as 34 students, some with 50, all in a school with approximately 3,000 students in the building. As she stated, whether the size of the schools in the building presented challenges to students with disabilities would depend on the student. While [REDACTED] said the IEP could be followed, she was more equivocal about the possibility about it being able to benefit the child’s identified deficits. What was abundantly clear was the many periods weekly in which [REDACTED] would not have any needed special education support for her special education needs For the reasons noted above, I find the district failed to provide FAPE to [REDACTED].

ISSUE 2 - Appropriateness of Parent Placement

Under the second prong of Burlington, the parents bear the burden of proving the appropriateness of the services sought for [REDACTED]. M.S. v. Board of Education of the City of Yonkers, 231 F.3d 96, 104 (2d Cir. 2000); Application of a Student with a Disability, Appeal No. 99-51; Application of a Student with a Disability, Appeal No. 94-29; Application of a Student with a Disability, Appeal No. 95-57. In order to meet that burden, the parents must show that [REDACTED] offered an educational program designed to meet [REDACTED]’s special education needs. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Application of a Student with a Disability, Appeal No. 99-51; Application of a Student with a Disability, Appeal No. 98-76; Application of a Student with a Disability, Appeal No. 94-29. A unilateral placement is only appropriate if it provides education instruction specifically designed to meet the unique needs of a handicapped child. Gagliardo v. Arlington Central School District, 489 F.3d 105 (2d Cir. 2007).

In this regard, I find that the parents have sustained their burden of demonstrating the appropriateness of the program at [REDACTED] for [REDACTED].

I credit the testimony of [REDACTED] description of [REDACTED], noting the small group instruction, in [REDACTED]’s case three-student classes for her academic subjects. I note work in her ELA (taught by a special education teacher) on improving her fluency and comprehension skills, and work in her writing class (taught by the speech pathologist) focusing on her recall and her organization, using visuals, scaffolding, and graphic organizers, with a sequential curriculum using visual supports. [REDACTED] also had an advisor for support with organization or other issues that came up. I credit reports of progress during the school year, noting [REDACTED]’s description of increased confidence in [REDACTED]’s ability to share in a group, and increases in her reading fluency and longer written responses. Progress socially and emotionally was noted by both [REDACTED] and [REDACTED], who stated that [REDACTED]’s confidence level and her ability to speak publicly and overall adjustment to change improved. She attributed her daughter’s progress to the class attention and the small classes, as well as the modified curriculum, stressing the focus of individual staff on [REDACTED]s individual needs.

For the reasons noted above, I find the program provided [REDACTED] at [REDACTED] to be appropriate.

ISSUE 3 - Equitable Considerations The third prong of the Burlington decision requires a balancing of the equities in determining whether reimbursement should be awarded. The Individuals with Disabilities Education Act (IDEA) provides that an award of tuition reimbursement may be reduced or denied if notwithstanding their being advised that they should do so, parents neither inform the CSE of their disagreement with its proposed placement and their intent to place their student in a private school at public expense at the most recent CSE meeting prior to their removal of the student from public school, nor provide the school district with written notice of such information ten business days before such removal. 20 U.S.C. 1412(a)(10)(C)(iii).

In this case, there was no evidence that the parent did anything but cooperate with the DOE at all times. I note the district representative stated the district’s position that equitable considerations favored the district, without giving any reasons. Thus, equitable considerations in this case would not operate to deny or reduce an award of tuition payment.

Direct payment. The parent has also requested direct funding to the school. As the decision in this case will not exceed the amount already paid by the parent, a decision on direct funding is not required. However, I am including it here for use in any possible appeal.

Direct funding in this case is not warranted. In Connors vs. Mills, 34 F.Supp.2d 795 (NDNY, 1998), the Court stated that once the Burlington/Carter prerequisites are met, the issue is not the fact of payment, but the timing of that payment, and stated that 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.” An impartial hearing officer can order prospective tuition funding, where in circumstances to hold otherwise would be to deny a student the right to access to services under the IDEA. Sabatini v. Corning-Painted Post Area School District, 78 F.Supp. 2d 138 (USDC, WDNY).

In this case, the parent offered undisputed testimony about her ability to pay tuition, supported by the tax return she submitted. Thus, direct payment is warranted.

ORDER

• • The DOE shall reimburse the parents for $100 or payment made to the [REDACTED] for the 2020-2021 school year.
• • The DOE shall pay the [REDACTED] the remaining balance of [REDACTED]’s tuition for the 2020-2021 school year of $109,900.

IT IS SO ORDERED.

Dated: August 8, 2022

__Nancy M. Lederman_____________

NANCY M. LEDERMAN

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An Appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for proceedings before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

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EXHIBITS

DEPARTMENT OF EDUCATION EXHIBITS

1 IEP, 4/20/2020, 26 pages

2 Prior written notice, 7/19/2020, 5 pages

3 Teacher progress report, 2/14/2020, 5 pages

4 Occupational therapy progress report, 2/14/2020, 4 pages

5 Speech-language progress report, 2/15/2020, 4 pages

PARENT EXHIBITS

A Due process complaint, 1/28/2021, 4 pages

B Parent email, 4/28/2020, 2 pages

C Parent letter, 6/17/2020, 3 pages

D Parent letter, 9/22/2020, 3 pages

E Goals, 2020/2021, 13 pages

F End of year progress report and assessment summary, 6/25/2021, 4 pages

G End of year speech and language progress report, 6/25/2021, 12 pages

H Occupational therapy evaluation report, 6/25/2021, 5 pages

I Enrollment contract, 5/11/20, 5 pages

J Affidavit of payment, 6/25/21, 1 page

K Proof of payment, undated, 2 pages

L Attendance record, 2020/2021, 6 pages

M Class schedule, 2020/2021, 8 pages

N Program description, 2020/2021, 7 pages

O Tax return, 3/10/21, 3 pages