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CASE NUMBER: 550396 - NYC: 206703
FINDINGS OF FACT AND DECISION
Case Number: 206703
Student’s Name: REDACTED REDACTED
Hearing Requested By: Parent
Dates of Hearing: December 20, 2021
January 18, 2022
March 15, 2022
April 13, 2022
May 24, 2022
June 23, 2022
July 19, 2022
July 21, 2022
Actual Record Close Date: August 2, 2022
Hearing Officer: Jean Marie Brescia, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
December 20, 2021 For the Parent:
REDACTED REDACTED, Esq.
For the Department:
None
January 18, 2022 For the Parent:
REDACTED REDACTED, Esq.
For the Department:
REDACTED REDACTED, District Representative
March 15, 2022 For the Parent:
REDACTED REDACTED, Esq.
For the Department:
REDACTED REDACTED, District Representative
April 13, 2022 For the Parent:
REDACTED REDACTED, Esq.
For the Department:
REDACTED REDACTED, District Representative
May 24, 2022 For the Parent:
REDACTED REDACTED, Esq.
For the Department:
REDACTED REDACTED, District Representative
June 23, 2022 For the Parent:
REDACTED REDACTED, Esq.
For the Department:
None
July 19, 2022 For the Parent:
REDACTED REDACTED, Esq.
REDACTED REDACTED, Parent For the Department:
REDACTED REDACTED, District Representative
July 21, 2022 For the Parent:
REDACTED REDACTED, Esq.
REDACTED REDACTED, Co-Head of REDACTED School For the Department:
REDACTED 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(“IDEA”), 20 U.S.C. §1415(f), in the matter of REDACTED REDACTED after the appointment of another hearing officer was rescinded.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 the hearing on February 12, 2021, challenging the Department of Education’s failure to offer REDACTED a free appropriate public education for the 2020-2021 school year and seeking reimbursement for REDACTED’s tuition at the REDACTED School (“REDACTED”), a New York State approved non-public special education school located in New York City. Ex. 1 at 1-2.
A pre-hearing conference was conducted on December 20, 2021. The Department did not appear at the pre-hearing conference. Tr. 2. Counsel for REDACTED’s parent clarified the relief requested. Tr. 2-3. The proceeding continued on January 18, 2022, at which time the parties indicated that they were continuing to try to resolve this case. The hearing commenced on March 15, 2022. At the April 13 hearing, counsel for REDACTED’s parent stated that he had filed an amended hearing demand on April 11 (see Ex. M), and the District Representative stated the he would be accepting this amended hearing demand. The Department accepted the amended hearing demand, and this acceptance was recognized in the Impartial Hearing System, on April 22, 2022.
The hearing reconvened on May 24, 2022 and June 23, 2022, after the expiration of the second resolution period. The hearing was then conducted and completed on July 19 and July 21, 2022. The Department had offered documents in evidence on March 15, which were admitted on that date. The Department did not present the testimony of any witnesses. Tr. 73.
The parties made applications on the record for extensions of the compliance date. The applications were granted by written Orders of Extension dated December 20, 2021 and January 18, March 14, June 23 and July 19, 2022. The record closed on August 2, 2022, upon the hearing officer’s review of the transcript of the last day of hearing, and the Actual Record Close Date is August 2, 2022.
Appended to the record are the names of the persons who appeared at the hearing and a list of the documents entered into evidence.
Findings of Fact
- • REDACTED is a now REDACTED year-old girl whose disability is classified, for the purposes of the IDEA, as other health impairment. Exs. A, L at ⁋ 5.
- • REDACTED’s parents obtained a Neuropsychological Evaluation of REDACTED in the fall of 2019. Ex. 8. REDACTED was diagnosed with REDACTED (“REDACTED”), REDACTED, REDACTED, and REDACTED. Ex. 8 at 14.
- • During the 2019 2020 school year, REDACTED attended REDACTED grade at a Department general education school. Ex. 9. She struggled to attend to instruction, remain connected, remain regulated in the classroom, and learn in the classroom environment. Ex. 9 at 1. She needed much teacher support in the classroom to attend to instruction, including direct 1:1 teacher support after a lesson to review instructions and complete work; and she demonstrated low frustration tolerance and would cry and withdraw from the lesson. Exs. 11, 15.
- • REDACTED’s REDACTED grade teacher recommended that REDACTED attend a small special education classroom in a small special education school where she could receive the individualized and supportive educational environment she needed. Ex. 11.
- • In June 2020, REDACTED returned to the neuropsychologist for an updated evaluation. Ex. 13. The evaluator noted that REDACTED’s significant learning and attentional difficulties continued to make school difficult for her and that she had made progress in reading with “significant individual attention.” The evaluator recommended that REDACTED attend a small special education school where she could receive specialized reading instruction. Ex. 13 at 5.
- • The CSE convened a meeting on August 4, 2020. REDACTED’s mother participated in this meeting. At the meeting, the CSE recommended that REDACTED attend a 12:1:1 program in a community school and receive related services. REDACTED’s mother expressed her concerns that such a class was too large for REDACTED and the degree of support that REDACTED needed. REDACTED’s parents never received an IEP from this meeting. Exs. 5, P at ⁋⁋ 5-6.
- • REDACTED’s mother received a School Location Letter, and she discussed REDACTED and her needs with school personnel. Ex. P at ⁋ 7.
- • REDACTED’s parents enrolled REDACTED in REDACTED for the 2020-2021 school year. Ex. P at ⁋ 10.
- • REDACTED is an elementary school that serves children with language-based learning disabilities. Ex. O at ⁋ 4. It provides a language-based program and 8:1:1 classes in which students receive individualized support. Ex. O at ⁋⁋ 5, 8. During the 2020-2021 school year, REDACTED students were enrolled in the school. Ex. O at ⁋ 11.
- • During the 2020-2021 school year, REDACTED’s main challenges to her learning were her language and attention, which impeded her ability to process information as well as her inabilities to regulate herself and manage frustration and transitions. Tr. 88-89.
- • At REDACTED, she was in a class of eight students and two teachers. The class followed a “tight routine,” and teachers worked with the school’s occupational therapist to incorporate sensory input and sensory regulation into the school day. Tr. 89-90; Exs. G (class schedule), O at ⁋ 12.
- • Across all her classes, REDACTED’s teachers provided her with individualized and multisensory instruction, integrated related services, scaffolding, reminders checklists and verbal and nonverbal cues to encourage her attention and engagement. Teachers provided REDACTED with one-to-one support to assist her in understanding academic skills and concepts and completing tasks. Ex. O at ⁋⁋ 23-24.
- • Reading instruction was provided in smaller groups: REDACTED’s reading group included four students. In the small group, REDACTED worked on texts at her instructional level and had time to practice her skills. Ex. O at ⁋⁋ 13-14.
- • REDACTED made progress in decoding, reading fluency, expression, comprehension and spelling. Ex. O at ⁋⁋ 13-14.
- • Writing instruction utilized the Writing Revolution program focusing on constructing clear and complex sentences, using sentences to build paragraphs, outlining, and grammar. Ex. O at ⁋ 15.
- • During the school year, through repetition of sentence skills and many opportunities to practice those skills, REDACTED made progress and strengthened her writing skills, particularly in the areas of formulating strong and complete sentences. Ex. O at ⁋ 15.
- • In math, REDACTED provided REDACTED with small group learning where she worked on computation skills, math concepts, fractions, word problems, money skills and measurement. REDACTED’s teachers supported her with clear and consistent directions, visuals, breaking down language, breaking down steps of math problems, and repetition. Ex. O at ⁋ 16.
- • REDACTED made over a grade level of progress in math during the 2020-2021 school year. Ex. O at ⁋ 16.
- • REDACTED provided REDACTED with a special chair and sensory tools. Tr. 90.
- • REDACTED’s teachers provided REDACTED with time to process information and visual supports. Tr. 90.
- • REDACTED provided REDACTED with the related services of counseling, speech therapy and occupational therapy; the teachers and the related services providers consult and collaborate as to addressing students’ needs. Tr. 90-91.
- • The speech therapist targeted behavior/communication, receptive language, expressive language, pragmatic language and play. REDACTED made progress in all areas: improving her sustained attention and regulating her emotions, comprehension of descriptive language, expressive vocabulary and longer utterance, and conversational skills. Ex. O at ⁋ 17.
- • The occupational therapist targeted REDACTED’s sensory processing and organization/regulation, fine motor skills, handwriting, visual motor integration and gross motor skills. REDACTED made progress across all these areas. Ex. O at ⁋ 18.
- • REDACTED benefitted from this consultation and collaboration; for example, her teachers knew when and how to provide her with a movement break, and what type of movement break. Tr. 91. During the 2020-2021, REDACTED learned how to ask for support when she needed it; instead of being frustrated, she would ask for help or a movement break. Tr. 92.
- • REDACTED’s parents submitted a ten-day notice letter to the Department on August 25, 2020, expressing their concerns that they had not yet received an IEP for REDACTED, about the program recommendation that was discussed at the IEP meeting, and the school proposed for REDACTED. Ex. B. REDACTED’s parents sent follow-up correspondence to the Department reiterating their concerns. Exs. C, D.
- • The CSE reconvened an IEP meeting for REDACTED on March 16, 2021. Ex. J. The CSE recommended that REDACTED attend a New York State-approved non-public day school, specifically REDACTED. Exs. J at 27, P at ⁋ 13. The Department began to fund REDACTED’s placement at REDACTED immediately after the IEP meeting. Exs. P at ⁋ 13.
- • REDACTED’s parents entered into an enrollment contract with REDACTED. The total tuition for the 2020-2021 school year was $66,000.00. Ex. H. The amount chargeable to REDACTED’s parents was $42,308.75, which they have paid in full. Exs. N, P at ⁋⁋ 13-14.
- • REDACTED’s mother observed that REDACTED made progress at REDACTED in reading decoding and comprehension, language skills, listening skills, conversational skills, writing and spelling. REDACTED also made progress in her social skills. Ex. P at ⁋ 15.
Decision
A board of education may be required to pay for education services obtained for a child by the child's parents if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. School Committee of the Town of Burlington v. Department of Education, 471 U.S. 359 (1985). The fact that the school selected by the parents is not approved as a school for children with disabilities by the State Education Department (as in the instant case) is not dispositive of the parents’ claim for tuition reimbursement. Florence County School District v. Carter, 510 U.S. 7 (1993).
The central purposes of the IDEA are to ensure: (1) that students with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living and (2) that the rights of students with disabilities and their parents are protected. 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 U.S. 49, 51 (2005); Board of Education v. Rowley, 458 U.S. 176, 179-181 (1982). The first step in the inquiry is to determine whether the school district offered a free appropriate public education to the student. See, e.g., Application of a Child with a Disability, Appeal No. 07-008; Application of a Child with a Disability, Appeal No. 06-121. A free appropriate public education includes special education and related services designed to meet the student’s individual needs, provided in conformity with a written IEP. See 20 U.S.C. §1401(9); 20 U.S.C. §1414(d).
A school district offers a student a free appropriate public education when (1) it complies with the procedural requirements of the IDEA and (2) the IEP developed by the district is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 999 (2017); see also Rowley, 458 U.S. at 207; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 (2d Cir. 2014); R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012). A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” Rowley, 458 U.S. at 203. The school district also must ensure that “[t]o the maximum extent appropriate, children with disabilities are educated with children who are not disabled” that is, in the student’s least restrictive environment. 20 U.S.C. § 1412(a)(5)(A); 8 NYCRR 200.1(cc), 200.6(a)(1); see M.W. ex rel. S.W. v. New York City Dep’t of Educ., 725 F.3d 131,143 (2d Cir. 2013).
The particular educational needs of a student with a disability and the services required to meet the needs must be set forth in a written IEP. Honig v. Doe, 484 U.S. 305, 311 (1988); 20 U.S.C. § 1401(9)(D); see 20 U.S.C. § 1414(d); 34 C.P.R. § 300.320. An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs. 34 C.F.R. 300.320 (a)(1); 8 N.Y.C.R.R. 200.4(d)(2). The CSE then must establish annual goals related to the identified needs of the student and provide for the use of appropriate special education services in the IEP. 8 N.Y.C.R.R. 200.4(d)(2)(iii), (v).
In New York, the school district bears the burden of proof in an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. N.Y. Educ. Law § 4404(1)(c); see R.E., 694 F.3d at 184-85. In this case, the DOE did not present testimony with respect to its provision of FAPE to REDACTED for the 2020-2021 school year, specifically to explain how the programming, services, supports and accommodations set forth on the IEP (which REDACTED’s parents did not receive) were “reasonably calculated” to address REDACTED’s special educational needs. Since the Department did not offer such evidence to explain how its IEP for REDACTED was “reasonably calculated” to permit her to make progress given her unique circumstances, the Department did not carry its burden of proof and cannot prevail on the first “prong” of the Burlington/Carter test.
REDACTED’s parents bear the burden of proof concerning the appropriateness of REDACTED for REDACTED. See, e.g., Frank G. v. Board of Education of the Hyde Park Central School District, 459 F. 3d 356, 364 (2d Cir. 2006), cert. denied, 128 S.Ct. 169 (2007). To meet this burden, the parent must show that the educational services provided at REDACTED addressed REDACTED's identified special education needs. See C.F., 74;6 F.3d at 82; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 837 (2d Cir. 2014); R.E., 694 F.3d at 187; G.B. and L.B. on behalf of N.B. v. Tuxedo Union Free School District, 09-CV-859 (S.D.N.Y Sept. 30, 2010); Application of the Bd. of City School District of the City of New York, Appeal No. 95-79, at pp. 6-7; Application of a Child with a Disability, Appeal No. 96-1. The Second Circuit instructs that:
No one factor is necessarily dispositive in determining whether parents’ unilateral placement is “reasonably calculated to enable the child to receive education benefits.” Rowley, 458 U.S. at 207. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs.... To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only demonstrate that the placement provides “educational instruction specially designed to meet the unique needs of a handicapped child; supported by such services as are necessary to permit the child to benefit from instruction.”
Frank G., 459 F. 3d at 364 (emphasis added); also Bd. of Educ. of the Wappingers Cent. Sch. Dist. v. D.M., 831 F. App’x 29, 78 IDELR 2 (2d Cir. 2020) (Summary Order).
Furthermore, as the Second Circuit held in R.E.: “parents may provide evidence that the child made actual progress at their chosen private placement to support the adequacy of that placement.” 694 F.3d at 187 n.3.
The preponderance of the evidence establishes that REDACTED provided REDACTED with an educational environment in which her constellation of identified special education needs were addressed. In particular, REDACTED addressed REDACTED’s need for small classes in which she received the individualized and multisensory instruction and extensive teacher supports that she required in order to address her language-based and attentional needs so she could learn. The record is clear as to the extent of the individualized special education, related services and supports that REDACTED personnel provided to REDACTED. See paragraphs 11 through 13, 15, 17 and 19 through 24 above.
REDACTED has made progress at REDACTED during the 2020-2021 school year. See paragraphs 14, 16, 18 and 22 through 24 above. At REDACTED, REDACTED has 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 school year. As a result, REDACTED’s parents prevail with respect to the second Burlington/Carter criterion.
With respect to the third Burlington criterion, whether equitable considerations support REDACTED’s parents’ claims, the evidence establishes that REDACTED’s parents cooperated with the CSE by attending CSE meetings, communicating with Department personnel, and providing the requisite statutory notice. See, e.g., R.E., 694 F.3d at 185, 195; M.F. v. New York City Dep’t of Educ., 2013 U.S. Dist. LEXIS 79181 at *34-*35 (S.D.N.Y. June 4, 2013) (“equitable considerations” include parental cooperation with the school district, attending CSE meetings, and providing notice to the school district). Equitable considerations favor the award of relief to REDACTED’s parent. As a result, REDACTED’s parents prevail with respect to the third Burlington/Carter criterion.
Therefore, for all the above reasons, it is ORDERED that:
The Department of Education shall reimburse REDACTED’s parents for REDACTED’s placement at the REDACTED School for the portion of the 2020-2021 school year for which the Department has not funded as per the March 2021 IEP. The amount of reimbursement shall not exceed $42,308.75 for the 2020-2021 school year.
Dated: August 15, 2022
______________________________
JEAN MARIE BRESCIA, ESQ.
Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer (SRO) of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.
An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.
DOCUMENTATION ENTERED INTO THE RECORD
New York City Department of Education Exhibits
DOE
Exhibit
Date
Description
Number of Pages
1
02/12/2021
Due Process Complaint
4
2
02/12/2021
Ten Day Notice
2
3
12/11/2020
Ten Day Notice
2
4
08/25/2020
Ten Day Notice
2
5
08/04/2020
Individualized Education Program
31
6
08/21/2020
Prior Written Notice
4
7
08/21/2020
School Location Letter
3
8
11/21/2019
Neuropsychological Evaluation
23
9
01/24/2020
Counseling Progress Report
1
10
07/12/2020
Occupational Therapy Progress Report
3
11
06/2020
Teacher Letter
1
12
06/2020
Report Card (Trimester 3)
6
13
06/18/2020
Neuropsychological Update
9
14
06/2020
Speech and Language Progress Report
3
15
06/2020
Teacher Progress Report
1
Parents’ Exhibits
Letter
Date
Name of Document
# of Pages
B 8/25/2020 10-Day Notice Letter 3
C 12/11/2020 First Follow-Up Notice Letter 3
D 2/12/2021 Second Follow-Up Notice Letter 3
E January 2021 REDACTED Mid-Year Progress Report 15
F June 2021 REDACTED Year-End Progress Report 15
G Undated 2020-2021 Schedule 1
H 2/4/2020 2020-2021 Contract 4
I 12/14/2021 Payment Affidavit 1
J
3/16/2021
IEP 30 K Undated 2020-2021 Attendance Record 1
L
6/4/2020
REDACTED Letter
1
M
4/6/2022
Amended Due Process Complaint
3
N
7/12/2022
Amended Payment Affidavit
1
O
7/12/2022
REDACTED REDACTED Testimony Affidavit
10
P
7/13/2022
REDACTED REDACTED Testimony Affidavit
5