Impartial Hearing Decision

NYSED # 550391 / NYC # 206698

FINDINGS OF FACT AND DECISION

Case Number: 206698

Student’s Name: [REDACTED] [REDACTED]

Hearing Requested By: Parent

Dates of Hearing: December 17, 2021

February 14, 2022

March 15, 2022

April 11, 2022

Actual Record Close Date: April 25, 2022

Hearing Officer: Jean Marie Brescia, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

December 17, 2021 For the Parent:

[REDACTED], Esq.

For the Department:

[REDACTED], District Representative

February 14, 2022 For the Parent:

[REDACTED], Esq.

For the Department:

[REDACTED], District Representative

March 15, 2022 For the Parent:

[REDACTED], Esq.

For the Department:

[REDACTED], District Representative

April 11, 2022 For the Parent:

[REDACTED], Esq.

[REDACTED] [REDACTED], Parent

[REDACTED], [REDACTED]

For the Department:

[REDACTED], District Representative

On December 6, 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20 U.S.C. §1415(f), in the matter of [REDACTED] [REDACTED] after the appointment of another hearing officer was rescinded.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 February 12, 2021, challenging the Department of Education’s failure to offer [REDACTED] a free appropriate public education for the 2020-2021 12-month school year and seeking funding for [REDACTED]’s tuition and related services at the [REDACTED] (“[REDACTED]”), a non-public special education school located in New York City. Ex. A.

A pre-hearing conference was conducted on December 17, 2021. The hearing was conducted on February 14, March 15 and April 11, 2022. The Department did not present any documentary evidence nor the testimony of any witnesses. Tr. 34.

The parties made joint applications on the record for extensions of the compliance dates. The applications were granted by Orders of Extension dated December 17, 2021 and February 14, March 15 and April 11, 2022. The record closed on April 25, 2022, upon the Hearing Officer’s receipt and review of the transcript of the final day of hearing, and the Actual Record Close Date is April 25, 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 [REDACTED]-year-old young woman whose disability, for the purposes of the IDEA, is classified as intellectual disability. Ex. B.
• • [REDACTED] is significantly delayed across all domains: cognition; comprehension; academics; ADL skills; communication; social skills; fine and gross motor skills; sensory integration/behavioral issues; and attention/concentration; and demonstrates [REDACTED]. Tr. 52; Exs. B, V at ⁋⁋ 12-13. She is diagnosed with [REDACTED]. Ex. O.
• • Parent initially placed [REDACTED] at [REDACTED] for the 2016-2017 school year; [REDACTED] has continued to attend [REDACTED] through the current 2021-2022 school year. Ex. Y.
• • [REDACTED] is an independent special needs school. Tr. 50. For the 2020-2021 school year, 37 students were enrolled in the program. Tr. 50.
• • During the 2020-2021 school year, [REDACTED] was enrolled in a class that included six students, a teacher (who is a certified special education teacher) and three assistant teachers, as well as 1:1 paraprofessionals working with some of the students. Tr. 49. The students were within two years’ chronological ages and had similar functioning levels. Tr. 49; Ex. V at ⁋ 2.

[REDACTED]’s class schedule included: math, social skills and games, language arts, reading comprehension, vocabulary, typing, writing, exercise, breakfast and lunch, spelling, listening comprehension, shopping, speech therapy, OT, PT, counseling, science, geography, hygiene, arts and crafts, and aqua therapy. Tr. 52-42; Exs. K V at ⁋⁋ 9-10.

• • Meal times are instructional in terms of developing OT and ADL skills. Tr. 53-54.
• • Prayer time is incorporated into the school day. Tr. 54. Approximately five percent of the school schedule consists of religious observance in the form of prayer. Exs. K, V at ⁋ 9.
• • Aqua therapy consists of swimming and exercises led by an occupational therapist or a physical therapist. Tr. 52. [REDACTED] benefits from aqua therapy because she has difficulties “walking with a proper gait,” balance and coordination. Exercising in the water was “a good form of less resistance exercise for her” and provides her with opportunities to socialize. Tr. 52.
• • [REDACTED] personnel prepared and implemented behavior modification strategies for [REDACTED] to address appropriate participation in classroom routines, remaining on task, performing ADL skills, organizational skills and social skills. Exs. D, G.
• • [REDACTED] personnel prepared individualized annual goals and objectives for [REDACTED] for the 2020-2021 school year in the areas of communication (initiating non-verbal communication, articulation, using pictures and writing to communicate thoughts and feelings, maintaining appropriate proximity, understanding emotions and perspectives of others), life skills (meal preparation, shopping, hygiene, organizing personal belongings and completing tasks in a timely manner), math (reading and writing numbers, addition, money skills, time management), OT (ADL skills, visual motor/visual perceptual skills, behavior/sensory, fine motor skills, coordination), PT (gait, mobility, strength, navigating the school building safely), literacy and language arts (decoding, vocabulary, listening and reading comprehension, writing sentences), and speech therapy (reading comprehension, grammar, following directions, vocabulary). Exs. H, J, L, M, O, P, Q, V at ⁋ 23.
• • [REDACTED] personnel evaluated [REDACTED]’s progress on goals. During the 2020-2021 school year, [REDACTED] made progress in participation in group activities, receptive language skills, social skills, reading comprehension, grammar skills, vocabulary, following directions, math computation, shopping, hygiene, improved behaviors, communication skills, increased attention to task and reduced frustration. Exs. E, F, J, M, O, Q, R, V at ⁋⁋ 17-.23.
• • In order to learn, [REDACTED] needs individual instruction, emotional support, positive attention, and a high staff to student ratio to encourage her to participate in learning, communicate with others, and reduce her negative attention seeking behaviors. [REDACTED] provided these necessary supports and interventions for [REDACTED] and enabled her to make progress during the 2020-2021 school year. Ex. V at ⁋⁋ 14-15.
• • [REDACTED]’s father observed that [REDACTED] has REDACTED REDACTED and “doesn’t speak to everyone;” [REDACTED] has achieved at [REDACTED] in terms of communication and skills she needs in her life, and she has grown academically, socially and behaviorally. Tr. 62; Ex. Y at ⁋ 4.
• • [REDACTED]’s parents entered into an Enrollment Contract with [REDACTED]. The tuition for the 2020-2021 12-month school year was $98,850.00. [REDACTED]’s parents are financially responsible for this tuition. Exs. S, T, V at ⁋ 7.
• • [REDACTED]’s parents are unable to afford to pay [REDACTED] tuition at this time. Exs. Y at ⁋ 5, Z.
• • [REDACTED]’s father attended the DOE’s IEP meeting for [REDACTED] for the 2020-2021 school year. Ex. I.
• • [REDACTED]’s parents filed a ten-day notice letter with the Department on June 24, 2020. In the letter, they informed the Department that they had not yet received a DOE placement for [REDACTED] for the 2020-2021 school year and would continue to enroll [REDACTED] at [REDACTED]. Ex. C.

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 [REDACTED] 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 decision making 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. In this case, the DOE did not present testimony or evidence with respect to its provision of FAPE to [REDACTED] for the 2021-2022 school year. Since the Department did not offer any evidence in support of its program for [REDACTED], the Department did not carry its burden of proof and cannot prevail on the first “prong” of the Burlington/Carter test.

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

No one factor is necessarily dispositive in determining whether parents’ unilateral placement is “reasonably calculated to enable the child to receive education benefits.” Rowley, 458 U.S. at 207. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs.... To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only demonstrate that the placement provides “educational instruction specially designed to meet the unique needs of a handicapped child; supported by such services as are necessary to permit the child to benefit from instruction.”

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

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

The preponderance of the evidence establishes that, for the 2020-2021 12-month school year, [REDACTED] provided [REDACTED] with an educational environment in which her identified special education needs were addressed. First and foremost, [REDACTED] addressed [REDACTED]’s need a small class in which she could receive individualized support to address her communication, learning, attentional and behavioral needs. [REDACTED] provides [REDACTED] with individual instruction, emotional support, positive attention, and a high staff to student ratio to encourage her to participate in learning, communicate with others, and reduce her negative attention seeking behaviors. Furthermore, the curriculum pays significant attention to [REDACTED]’s need to learn ADLs and independence skills (such as hygiene, shopping and meal preparation) and is suited to, and does, address her “unique circumstances” such that she is able to make progress on educational goals tailored to her unique needs.

At [REDACTED], during the 2020-2021 school year, [REDACTED] made progress across the range of her challenges, 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 12-month school year. As a result, [REDACTED]’s parent prevails with respect to the second Burlington/Carter criterion.

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 and 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, at the time of the hearing, has not paid any 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. 95 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, 95 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] for the 2020-2021 12-month school year. The amount of funding shall not exceed $93,907.50 the 2020-2021 12-month 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: May 9, 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

Parent’s Exhibits

Exhibit Date Document Pages

A 2/12/2021 Impartial Hearing Request 4

B 07/01/2021 Individualized Education Program 14

C 06/24/2020 10 Day Later 1

D July 2020 Behavior Modification Plan 1

E July 2020 Bi-Annual Student Evaluation for 2020 8

F June 2021 Bi-Annual Student Evaluation for 2021 8

G July 2020- Classroom Routines and Expected Behaviors 1

June 2021

H July 2020- Communication & Socialization Objectives 1

June 2021

I 05/06/2020 Corrected Attendance Page 1

J April 20221 Counseling Report 2

K 2020-2021 Daily Schedule for 2020-2021 1

L July 2020 Life Skills Goals 2

-June 2021

M July 2020 Math Objectives 2

-June 2021

N April 2021 OT Report 4

O April 2021 PT Report 2

P July 2020 Reading & Language Arts Goals 3

-June 2021

Q April 2021 Speech and Language Report 5

R April 2021 Teachers Report 2

S 07/06/2021 Enrollment Contract 2

T Undated 2020-2021 Attendance Record 1

U 06/24/2021 Affidavit regarding Tuition 1

V 03/30/2022 Affidavit of Program Director 8

Y 04/10/2022 Affidavit of Parent 2

Z 02/10/2022 Form 1040 2