New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 550082 - NYC: 206412

FINDINGS OF FACT

Case Number:

NYS Case Identifier Number:

Student’s Name: REDACTED

Date of Birth: REDACTED

District: REDACTED

Hearing Requested By: Parent

Dates of Hearing: November 18, 2021, and

January 11 and March 29, 2022

Record Closed Date: April 18, 2022

Hearing Officer: Tessler

APPEARANCES:

November 18, 2021

Parent:

REDACTED, Esq.

Department of Education:

REDACTED, CSE Representative

January 11, 2022

Parent:

REDACTED, Esq.

Department of Education:

REDACTED, CSE Representative

March 29, 2022

Parent:

REDACTED, Esq.

Department of Education:

REDACTED, CSE Representative

EXHIBITS:

Parent:

• • Due Process Request 1/30/21 3 p
• • Parent Letter 6/22/20 2
• • Tuition Contract 2020/21 1
• • Affidavit of Payment 3/22/22 1
• • Class Schedule (Corrected) 2020/21 1
• • Remote Learning Plan 2020/21 1
• • Parent Affidavit 3/28/22 2
• • 2020 Form 1040 1/21/22 3
• • Proof of Payment Various 7
• • Affidavit: REDACTED 3/28/22 5
• • Parent Email 6/29/20 4 I. Introduction On November 2, 2021, I was appointed to conduct an impartial hearing pursuant to 20 U.S.C. §1415, regarding the special education program of REDACTED ("REDACTED"); the hearing was held on November 18, 2021, and January 11 and March 29, 2022. Lists of persons in attendance and documents received in evidence are appended to the record.

The decision deadline was extended at the parties’ request on November 18, 2021 and January 11, 2022 to allow for settlement negotiations, and on March 29, 2022 to allow for receipt of the transcript. Before granting the extension requests, I determined that the matter involved a past school year, and that the extensions would have no adverse impact on the child’s educational interest or well-being, and no adverse financial or other detrimental consequences for the parties. I also determined that the extension requests were not based on school vacations, or scheduling conflicts of the parties or their representatives.

II. Background

REDACTED is an 15 year old student classified with a disability; she is diagnosed with cerebral palsy, has global delays, and requires a wheelchair. During 2020/21 she attended the REDACTED program (“REDACTED”), a non-public, non-approved program. At an IEP meeting on May 26, 2020, the CSE recommended a 12:1:1 special class in a special school and placement in P. 721. On June 22, 2020, REDACTED’s parent notified the CSE that the program and placement recommendations were not appropriate, and that she intended to place REDACTED in REDACTED and seek department of education funding for tuition. (Exh. B). REDACTED, Esq., attorney for REDACTED’s parent, requested the hearing on January 30, 2021, alleging that the department did not offer FAPE to REDACTED for 2020/21, and seeking funding for 2020/21 tuition and related services. (Exh. A).

III. The CSE’s Case

On January 11, 2022, the parties were advised that the adjournment to March 29, 2022 was a final adjournment, and they should both be prepared to go forward if the matter was not settled. On March 29, 2022, the CSE representative stated that the CSE had not disclosed evidence and was not prepared to go forward. I found the department of education in default. The CSE representative chose to leave the proceedings without questioning the parent’s witnesses.

IV. The Parent’s Case The parent submitted the Affidavit in Lieu of Testimony of REDACTED, Principal of REDACTED (Exh. J), who has a M.S. and certification in special education, and prior experience as a teacher and resource room coordinator in a non-public school; her duties and responsibilities include developing school curriculum, supervising teachers and service providers, admissions assessments, observing classrooms and working directly with teachers and students. REDACTED is a full time special education program for students ages 5-21. There are 4 divisions, including the elementary program for students aged 5 to 14 in kindergarten through 8th grade, who present with developmental and/or significant learning delays. All of the students have an IEP; classifications include Intellectual Disability, Multiple Disabilities, Speech Impairment, and Autism.

All REDACTED head teachers are licensed and certified in Special Education, and classroom support staff are enrolled in college programs for special education or therapy based educational programs. Staff has ongoing professional development, including weekly professional development meetings, three days of staff training prior to the start of each school year, and a yearly Professional Development Day. There are also training sessions throughout the year as required to address any new programs or educational developments. REDACTED offers the related services of Speech Therapy, Occupational Therapy, Physical Therapy and Counseling, and a vision teacher and mobility teacher for students who are visually impaired; all service providers are licensed and certified in their respective disciplines. The REDACTED elementary program has a reading and a math specialist on staff; the reading specialist has a M.S. in Elementary Education and is trained in the Wilson reading program, and the math specialist has a M.S. in Special Education. Staff includes a Music therapist, gym teacher, and art teacher. Progress reports and parent-teacher meetings are scheduled twice per year.

REDACTED attended the REDACTED elementary program from September, 2018 until her graduation in June 2021. Ms. REDACTED observed REDACTED in the classroom, and collaborated and communicated with her teachers and providers on a daily basis. REDACTED is friendly, sociable, and well mannered. She presents with many physical and academic challenges, including Cerebral Palsy, and is confined to a wheelchair. She is highly distractable, loses focus easily during lessons, has cognitive and academic delays, and limited fine motor ability. REDACTED requires considerable prompting and behavioral support to learn new skills. During 2020-2021, REDACTED was in a 4:1:1 class, and had a 1:1 para; the other students were from 11 to 14 years old, had similar academic and social needs, and their classifications included ID, OHI, and Speech Impairment. The head teacher has an M.S. and certification in special education, and the assistant teacher was enrolled in a Master’s program for Occupational therapy. REDACTED’s 1:1 health para was responsible for supporting her physical needs and behavior plan. Even in the 4:1:1 setting REDACTED required significant direct instruction, refocusing and positive reinforcement; she was easily districted and needed the support of her para or classroom teacher to ensure she was attending and remaining on task. At the start of the school year, REDACTED was easily frustrated and had emotional outbursts that required 1:1 intervention; her behavior improved as the year progressed. The 2020-21 Class Schedule (Exh. E) included morning meeting, which fostered communication and engagement with the students to encourage social emotional growth: students and teachers greet one other by name, share information about important events in their lives, and offer comments or ask clarifying questions, there is a group activity to foster group cohesion and develop social and academic skills, and then students read and interact with a short message written by the teacher, to help them focus on the day’s school work. The next subject was calendar math, which combined calendar skills with math concepts and skills, including measurement, skip counting, money and time, number patterns, and basic number sense. REDACTED received 1:1 reading instruction using the multi-sensory Wilson Reading program, mini readers to increase word retrieval and comprehension, direct instruction in spelling and writing, and a ‘read aloud’ literacy program. During 2020-21, REDACTED was an active participant in reading lessons and made significant progress in reading comprehension and spelling. REDACTED learned math using a 1:1 multi-sensory program; she learned some basic math and time concepts, and started learning to use a calculator, both for math and fine motor skills. There was a weekly science/social studies class that used a current events magazine with a digital platform, videos, and supplemental materials. REDACTED had a Hebrew language class four times per week.

REDACTED’s related services included Speech Therapy (2x45:1), Physical Therapy (3x30:1) and Occupational Therapy (2x30:1), and an Adaptive Daily Living Skills class (“ADL”). Speech Therapy focused on expressive and receptive language skills, intelligibility and functional communication/pragmatic skills. REDACTED made progress in self-advocacy skills, such as proactively asking for clarification, repetition or help when she did not understand something or needed support. In PT, REDACTED worked on gross motor skills, and made progress in taking steps with a walker without assistance and transferring from the floor to her wheelchair with minimal assistance. In OT, REDACTED worked on fine motor skills, including developing hand muscle strength, tracing skills, and independently maneuvering her wheelchair. The ADL class focused on skills such as proper hygiene, safety, and what do if you need help. REDACTED had counseling once per week with the school psychologist, to help her develop emotional awareness, self-monitoring and self-awareness. Counseling goals included developing skills to express mature emotions such as frustration and anxiety, to build frustration tolerance by using coping skills, and to ask for help on physical tasks.

For the 2020-21 school year, REDACTED had a behavioral intervention plan which focused on emotional regulation. The plan goal was to improve appropriate behaviors and create compliance in the classroom. To support this goal the school psychologist met with REDACTED’s 1:1 para weekly to discuss plan implementation and modification. REDACTED had a bi-weekly social skills class to foster social-emotional development. During 2020-21, REDACTED made significant social-emotional progress: she developed a greater interest in school, and became more emotionally regulated and less easily frustrated.

Staff met every two weeks as a team to discuss student programs and progress, and Ms. REDACTED met with related service providers weekly. REDACTED had a remote learning plan in place during 2020-21. (Exh. F).

The class schedule also included 15 minutes per morning (Monday to Friday) of prayer and 30 minutes per afternoon (Monday through Thursday) of instructions in religious customs; this was 195 minutes of religious instruction per week.

Ms. REDACTED opined that a 12:1:1 special class would be inappropriate for REDACTED, who required a much higher level of adult support and intervention.

The Affidavit in Lieu of Testimony of REDACTED, REDACTED’s parent (Exh. G), states that REDACTED is a triplet who was born with cerebral palsy and has global delays; she requires a wheelchair and is dependent on adult support for many activities. REDACTED has received special education services since birth and has had an IEP since pre-school. In elementary school she attended a small mainstream school; however, as academic and social demands increased REDACTED was unable to manage in a mainstream setting, and she entered REDACTED in September 2018.

Ms. REDACTED participated in REDACTED’s May 26, 2020 IEP meeting, in which the CSE recommended a 12:1:1 special class in a special school; she expressed concern that a 12:1:1 class was too large and would not provide the level of support that REDACTED required. Ms. REDACTED and REDACTED’s teacher told the CSE at REDACTED was in a class of 6 students, and required intensive support; she stated the CSE team did not have any substantive response to their concerns. On June 22, 2020, Ms. REDACTED notified the CSE in writing that the IEP recommendation was not appropriate, and that she had not received a placement offer. (Exh. B). On June 29, 2020 a place in P 721 was offered. Ms. REDACTED contacted the proposed placement by email and telephone, but received no response. (Exh. K). Ms. REDACTED states that she would have considered an appropriate public placement, and that REDACTED progressed socially and academically at REDACTED during 2020-21: she became more mature, was able to talk about her diagnosis, and was more emotionally regulated.

REDACTED 2020-21 tuition was $125,000, including the cost of the 1:1 health para. Pursuant to the tuition contract, signed on September 9, 2020 (Exh. C), the parent is fully liable for tuition; to date, $6,500.00 was paid. (Exhs. D, I). The parent requests direct payment, based upon income and household size. (Exh. H).

V. Findings of Fact and Conclusions of Law

I find that REDACTED’s parent is entitled to department of education payment for REDACTED’s 2020/21 tuition and related services at REDACTED, because the CSE failed to recommend an appropriate program and placement for REDACTED, REDACTED is an appropriate educational program for REDACTED, and equitable considerations support a tuition award.

A central purpose of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][1][A]; Bd. of Educ. v. Rowley, 458 U.S. 176, 179-81, 200-01 [1982]; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [2d Cir. 2006]). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a written IEP (20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.17[d]; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.320). A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]). The IDEA directs that, in general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and... affords the student with an opportunity greater than mere 'trivial advancement'" (Walczak, 142 F.3d at 130). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the LRE (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Walczak, 142 F.3d at 132). An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services (Application of the Dep't of Educ., Appeal No. 07-018).

In Florence County School District Four at al. vs. Carter, 510 U.S. 7 (1993) ("Carter"), the U.S. Supreme Court held that a court may order reimbursement for parents who unilaterally withdraw their child from a public school that provides an inappropriate education under IDEA and put the child in a private school that provides an education that is otherwise proper under IDEA but is not approved by the state education agency pursuant to IDEA (20 U.S.C. §1402(8)(B)). In Carter, the Court held that a parental placement is proper if the private school is reasonably calculated to enable the child to receive educational benefits. To win reimbursement under Carter, it must be shown that (1) the public placement violates the IDEA, (2) the private placement is proper and is reasonably calculated to enable the child to receive educational benefits, and (3) equitable factors, such as the appropriate and reasonable level of reimbursement, communication and cooperation between the parents and the CSE, and the parents’ knowledge of and timely exercise of their due process rights, support the payment award.

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

I find that REDACTED’s parent met the Carter requirements. The CSE did not present any witnesses or offer any documents into evidence; I conclude that the department of education did not offer FAPE to REDACTED for 2020/21.

REDACTED offered a supportive, structured, small class environment, with multi-sensory instruction, individual attention, and related services; the program effectively addressed REDACTED’s significant global delays. The curriculum was individualized to each student, and provided the intensive modifications, supports and strategies, which REDACTED required, including training in activities of daily living and a behavior plan. The program staff included certified/licensed teachers and related service providers. The staff regularly monitored students’ progress and modified their programs to suit their developing needs. The record indicates that REDACTED made progress at REDACTED. REDACTED’s REDACTED program was reasonably calculated to ensure that REDACTED benefited educationally and made academic and social progress, and provided an education in substantial compliance with all the substantive requirements of IDEA.

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

I find that the parent is entitled to direct tuition funding. See: Burlington, supra, “In a case where a court determines that a private placement desired by the parents was proper under the [IDEA] and that an IEP calling for placement in a public school was inappropriate, it seems clear beyond cavil that “appropriate” relief would include a prospective injunction directing the school officials to develop and implement at public expense an IEP placing the child in a private school”; D.A. vs. N.Y.C. Dept of Education, 09-CIV-5097 (SDNY, 2/1/11), which held parents who satisfy the Burlington/Carter factors have a right to retroactive direct tuition payment, and that the exercise of rights under IDEA cannot be made to depend on the financial needs of a disabled child’s parents; Connors vs. Mills, 34 F.Supp 2d 795 (NDNY, 1998), “[when]…a parent shows that his or her financial circumstances eliminate the opportunity for unilateral placement in the non-approved school, the public school must pay the cost of private placement immediately….. it is ‘beyond cavil’ that an impartial hearing officer can order prospective tuition funding; to hold otherwise would be to deny a child the right to access to services under the IDEA”; Sabatini v. Corning-Painted Post Area School District, 78 F.Supp. 2d 138 (USDC, WDNY), a school district may be compelled to disburse funds for the student’s tuition at a private school and implement a hearing officer’s decision to place the student in anon-State-approved private school; Susquenita School District v. Raelee, 96 F.3d 78 (3d Cir., 1996) in which the court stated that the purpose of the IDEA is not advanced by requiring parents who have succeeded in obtaining a ruling that a proposed IEP is inadequate to front the funds for continued private education. “The burden that such an approach would place on many families is overwhelming. The cost of private education, especially in institutions specializing in teaching the learning disabled, is substantial. Families without means would be hard pressed to pay for private education…[t]he prospect of reimbursement at the end of the litigation turnpike is of little consolation to a parent who cannot pay the toll at the outset.” (Id. at 87). I conclude the parent is entitled to direct funding for REDACTED for 2020/21.

However, reimbursement must be limited to the amount paid for the secular part of REDACTED’s education. In Application of the Board of Education of the City School District of the City of New York, Appeal No. 96-14, the State Review Officer stated that tuition reimbursement to parents of a student who attends a school which offers religious instruction is not precluded by the First Amendment’s Establishment Clause. The decision relies on Zobrest v. Catalina Foothills School District, 113 S.Ct. 2462 (1993), which held that “Government programs that neutrally provide benefits to a broad class of citizens defined without reference to religion are not readily subject to an Establishment Clause challenge just because sectarian institutions may also receive an attenuated benefit.” The IDEA has the clear secular purpose of ensuring that all children with disabilities are offered a free appropriate public education, and that Burlington and Carter provide for the remedy of tuition reimbursement under IDEA; this remedy should be available to all parents who meet its criteria. “Tuition reimbursement does not involve the imprimatur of State approval upon the school selected by the parents, nor does it have as its primary effect the advancement of religion. Tuition reimbursement does not create a financial incentive for children to undertake religious education. It simply makes parents whole, by reimbursing them for expenditures which they would not have made, if their boards of education had offered their children the appropriate educational placements.” I find that REDACTED’s part-religious curriculum does not preclude an award of tuition reimbursement. The record indicates that about 10% of REDACTED’s school day was devoted to religious instruction; therefore 90% of the tuition shall be funded.

VI. Order

IT IS THEREFORE ORDERED THAT: the department of education shall fund 90% of REDACTED’s 2020/21 tuition at REDACTED in the amount of $112,500.00 (90% of $125,000.00 full tuition).

Dated: May 5, 2022

Craig Tessler, Esq.

Craig Tessler, Esq.

Impartial Hearing Officer

PLEASE TAKE NOTICE

Within 40 days of the date of this decision, the parent and/or the Public-School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act. If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed. An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov The Department of Education has designated the New York City Law Department to accept service of papers on its behalf, including appeals of decisions of Impartial Hearing Officers. Such service is made at 100 Church Street, New York, NY 10007 at the Messenger Center.