New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 552092 - NYC: 208298

FINDINGS OF FACT AND DECISION

Case Number: 208298

NYS Identifier Number: 552092

Student’s Name: STUDENT

Date of Birth: REDACTED

Region: REDACTED

Hearing Requested By: Parent

Date(s) of Hearing: 4/29/22

Actual Record Close Date: 7/29/22

Hearing Officer: Amy Lynne Itzla, Esq.

FINDINGS OF FACT AND DECISION

INTRODUCTION

I conducted an impartial hearing pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f)(3), regarding STUDENT. The hearing was convened at the written request of the Parent by letter dated May 10, 2021. (Exhibit B) A hearing was held on April 29, 2022, by video/teleconference, with the presence of a court reporter to create a written transcript. A list of the individuals who appeared at the hearing and a list of the documents received into evidence are attached to this decision.

In scheduling the hearing date, and throughout this proceeding, this Impartial Hearing Officer granted multiple requests by the parties for extensions of the 45-day timeline for the due process hearing, pursuant to 34 C.F.R. §300.515(a). The requests were granted, in accordance with 34 C.F.R. §300.515(c), and after full consideration of the cumulative impact of the following factors: 1) the impact on the child’s educational interest or well-being which might be occasioned by the delay; 2) the need of a party for additional time to prepare or present the party’s position at the hearing in accordance with the requirements of due process; 3) any financial or other detrimental consequences likely to be suffered by a party in the event of delay; and, 4) whether there has already been a delay in the proceeding through the actions of one of the parties. [8 NYCCR §200.5(j)(5)(ii)]

BACKGROUND

STUDENT was REDACTED years old at the beginning of the 2019-2020 school year. He had previously been classified by the Department of Education (“DOE”), through its Committee on Special Education (“CSE”), as a student with a disability. He had been provided with an Individualized Education Program (“IEP”) and had attended a public community school. STUDENT has had the diagnoses of Mild mixed Receptive-Expressive Language Disorder, Specific Learning Disability: Reading Disorder, and Specific Learning Disability: Disorder of Written Expression. (Exhibit C)

The Parent sent a letter to the CSE, dated August 21, 2019, providing notice of the Parent’s intention to place STUDENT at the SCHOOL (“SCHOOL”) for the 2019-2020 school year, and to seek funding for the placement from the DOE, if the DOE did not offer an appropriate program to STUDENT (Exhibit A) The Parent described STUDENT’s challenges, cited the DOE’s failure to evaluate him, alleged that the CSE team was improperly constituted, and addressed other failures in the process and development of an IEP for STUDENT The Parent rejected the program recommended as inappropriate for STUDENT

By letter dated May 10, 2021, the Parent requested an Impartial hearing asserting that the DOE failed to offer STUDENT a Free Appropriate Public Education (“FAPE”) for the 2019-2020 school year. (Exhibit B) The Parent explained that, based on that failure of the DOE to remedy the concerns raised in the letter of August 21, 2019, the Parent unilaterally placed STUDENT at SCHOOL and is seeking tuition reimbursement.

POSITIONS OF THE PARTIES THE DOE’S CASE The DOE did not appear to participate in the hearing on April 29, 2022. The DOE had also failed to appear for the scheduled status conference that preceded the hearing, held on March 3, 2022. Immediately following that status conference, on March 3, 2022, this Hearing Officer sent an email to the DOE’s representatives with notification of the hearing scheduled for April 29, 2022. In addition, on March 15, 2022, the DOE received the written transcript of the status conference which contained the scheduling of the April 29, 2022, hearing date.

THE PARENT’S CASE The Parent presented the testimony of two witnesses: REDACTED, Social Worker at SCHOOL; and, PARENT STUDENT’s mother.

REDACTED, Social Worker at SCHOOL, provided her testimony through a sworn affidavit. (Exhibit K) REDACTED described SCHOOL as a private, not-for-profit, special education school. It is a REDACTED school. She explained that, “REDACTED is based on principles of ethics and humanity. There is no religious instruction, nor is there prayer in the school. The school is completely non-sectarian, and accepts students of any race, religion or creed.” She testified that the school’s mission is “to educated children with learning disabilities to their fullest potential” and explained that the school “typically enrolls students with average to above average intelligence with a variety of educationally handicapping conditions including speech and language impairments, learning disabilities including specific reading, writing, and math disabilities, attention deficit disorder, and executive functioning disorder.” All students have learning disabilities and all classes provide differentiated instruction to the students, as well as modification and accommodations based on their individual needs. REDACTED explained the school’s reliance on a multi-sensory approach, with lessons being taught with auditory, visual, and kinesthetic tools. Each classroom uses an interactive display board that can be used in a hands-on manner by the students.

REDACTED testified that, “SCHOOL had 139 students in the REDACTED School for the 2019-2020 school year.” She described the professionals employed at the school, their educational qualifications, and the professional development and training provided to staff. REDACTED explained the grouping of students in their homeroom classes, which contain ten to twelve students. The students are in smaller groups for literacy and math, from two to six students, based on instructional level and ability. REDACTED described the methods used for student assessment and the use of extensive progress reports.

REDACTED testified that she is familiar with STUDENT and that he began attending SCHOOL in September 2016. She observed him in the program during the 2019-2020 school year, worked with his teachers, and reviewed his mid-year and year-end progress reports. She had also reviewed his 2016 neuropsychological assessment. With regard to STUDENT’s program for the 2019-2020 school year, REDACTED provided the following testimony:

• • STUDENT is a bright student who struggles in school as a result of dyslexia and attentional issues. He also has difficulty with executive functioning – his ability to plan and organize his thoughts and physical materials are limited. He requires support in all academic areas.
• • For the 2019-2020 school year, STUDENT was in a self-contained classroom called the Fell Room with ten other students of similar needs and strengths, and two teachers: REDACTED and REDACTED. REDACTED is a New York State Certified Special Education teacher. REDACTED holds a master’s degree in childhood general and special Education from Bank Street College of Education. For reading, STUDENT was in a group with three other students with one teacher (REDACTED) who holds a Bachelor of Arts in Psychology from Muhlenberg College and a master’s degree from Pratt Institute. STUDENT’s reading group used the Wilson Reading System, a structured multi-sensory program that utilizes auditory, visual and kinesthetic channels to help students master the processes of decoding, encoding and fluency.
• • STUDENT was supported by the highly structured and predictable routine of the Wilson Reading System and a small group size with a high teacher to student ratio, which enabled the teacher to offer direct and immediate feedback. With these supports in place and the individualized attention he required, Student made progress on decoding and encoding.
• • For math, STUDENT was placed in a group with five other students with one teacher, Luis Betancourt, who is a New York State Certified Special Education Teacher. STUDENT’s math group used a modified 4th grade Houghton Mifflin math curriculum called Math in Focus with Singapore Math by Marshall Cavendish, supplemented with teacher-created worksheets and other math textbooks. This is a unit-based curriculum supporting students to learn in depth content in one area from which new skills are built upon in the next topic of study. The group has had the opportunity for hands-on activities using math manipulatives, games, and written practice.
• • STUDENT was supported by the highly structured and predictable routine of the math group, a small group size with a high teacher to student ratio, which enabled the teacher to offer direct feedback to support his attention and participation through prompting and redirection, the steady pace of lessons, consistent, varied, and multi-sensory practice, and teacher support. STUDENT was provided with consistent feedback and individualized support, as well as a clear agenda and repetition of concepts when solving mathematical equations. With these supports in place, STUDENT made progress in math particularly with rounding and identifying place value.
• • STUDENT and the other students in the Fell Room had three periods of “Silent Meeting” each week. During these periods, a query was presented, and students were given time to sit silently and think about the query. Examples of queries are “How can we help our community?” or “How has the election impacted me?” There was no religious teaching during Silence, or at any other time at SCHOOL. STUDENT benefited greatly from Silent Meeting.
• • STUDENT received in-classroom language support twice weekly for 45 minutes during thematic studies and one time a week during social-emotional learning. In addition, STUDENT received small group geography research instruction, which met three times a week. The overall goal of in-classroom support is to integrate STUDENT’s individual language therapy goals within the academic setting of his classroom. This inclusive approach promotes a variety of skill-based language opportunities while focusing on the classroom lesson. In-classroom support encouraged STUDENT to use specific language tools and strategies, including improving his self-advocacy skills. Primary areas of language that were focused upon include improving STUDENT’s language skills in the areas of processing, written organization and formulation, and executive functioning skills.

REDACTED described how SCHOOL operated during the portion of the 2019-2020 school year during which the Covid pandemic required distance learning:

• • During distance learning, STUDENT met with the speech-language therapist and three of his classmates once weekly in a live virtual session. The goals were focused on improving STUDENT’s executive functioning and writing skills. He continued to benefit from this related service during remote learning. From March 13, 2020 to the end of the 2019-2020 school year, SCHOOL followed New York City local and state requirements to mitigate the potential spread of COVID-19 by implementing a distance learning program for all students. The distance learning program was developed to meet the challenges of these times and is accessible providing for the academic, social and emotional needs of our students with structure, predictability, flexibility, connection and advocacy. Support services included counseling, language therapy and occupational therapy are included in our distance learning model. We have also developed virtual Coffee and Chat counseling meetings and enhanced communication programs for families.
• • SCHOOL used Google Apps for Education as our distance learning platform. We used Google Classroom to track assignments and asynchronous work, and Google Meet to engage in live synchronous learning. When necessary, SCHOOL provided chromebooks, headphones and internet hot spots to families to support their students' engagement with school. A distance learning hub provided a single location for easy access to key information including weekly and daily announcements, division schedules, distance learning expectations, IT Helplines (open from 7am- 6pm daily) and a resource page for adults and students. Daily master and class attendance was tracked using the School Information System: Veracross. Each daily absence was addressed within the first few hours of each school day.
• • SCHOOL School distance learning took place five days a week. The schedule in each division was designed to meet the developmental needs of the students. The days consisted of a combination of synchronous (Live) and asynchronous classes. Classes included reading/literacy/English, math, social studies/history, science, world language, art, music, theatre and physical education. Morning meetings, homerooms and advisory provided opportunities to socialize, check-in and connect with the SCHOOL community. Language therapy and occupational therapy were provided in push-in and pull-out models. Individual support was provided during office hours, check-ins and study halls. Assessment of student work took place through pre and post testing, review of classwork, comments using the Google classroom platform and the completion of assignments.

REDACTED provided the following assessment regarding STUDENT’s placement at SCHOOL for the 2019-2020 school year. She stated that:

Based on my knowledge of the program at SCHOOL, my knowledge and collaboration with STUDENT’s teachers, my knowledge of STUDENT as a student and an individual, and my review of STUDENT’s evaluation material discussed herein, it is my professional opinion that SCHOOL was an appropriate placement for him for the 2019-2020 school year and that STUDENT received an educational benefit from the program at SCHOOL.

STUDENT’s mother provided her testimony through a sworn affidavit. (Exhibit L) REDACTED described STUDENT as “a kind, smart, funny child who loves computers and video games. He is a warm and loving big brother, who is becoming more confident every day and is doing his best to live with and understand his learning disability. He is in a good place right now.” She described her perspective on his strengths and weaknesses as follows:

STUDENT’s greatest strengths are that he is very smart, and has a strong mechanical mind. He is curious and wants to know how things work. He is making progress in school and feels much better about himself than he has in the past.

As a parent, I believe his greatest area of weakness is his struggle with emotional regulation. Thankfully, this has lessened as he has matured and once we found a helpful medication. He has substantial trouble with executive functioning, and he struggles with ADHD, and although his reading has improved greatly, it is still well-below grade level. Emotionally, he is still the little boy who could not read when all his peers could. That causes confidence issues…those scars have not fully healed.

REDACTED described STUDENT’s educational history, which included attending REDACTED, his locally- zoned school for kindergarten and first grade. The Parent requested an evaluation of STUDENT and, from the evaluation, learned that he was dyslexic. In 2016, the Parent had STUDENT evaluated by a neuropsychologist who confirmed the diagnosis and also determined that STUDENT had additional issues. Based on the findings, he needed a small a classroom and school for children with similar learning needs. The Parent shared the neuropsychological evaluation with the DOE. According to REDACTED, STUDENT was “miserable” in his class at REDACTED and, “he was the kid in class who could not read. He threw fits before and after school. He claimed to be sick all the time. It was extraordinarily difficult watching him deal with all of this.” With regard to his placement at SCHOOL for the 2019-2020 school year, REDACTED testified that STUDENT learned to read during that year. “He became someone who could understand what the words he was looking at were saying. He also grew an already burgeoning interest in math.” REDACTED explained that, “There is zero doubt in my mind that his academic and emotional development have been enhanced exponentially by being at SCHOOL. I would love for STUDENT to be able to go to school with all his friends from our block. But the fact is, SCHOOL teaches him the way he needs to be taught, and we saw no indication REDACTED could do the same.”

REDACTED described the STUDENT’s experience when the pandemic disrupted the 2019-2020 school year. She stated that:

It was a godsend to have his teachers at SCHOOL be so available and provide the stability and support he needed. The remote program that SCHOOL put together was incredible. STUDENT continued to learn quite a bit even after the pandemic hit. The emotional piece however was very difficult due to circumstances clearly out of anybody’s control. No matter where STUDENT went to school in 19-20, Covid would have made anything challenging and difficult. But we were so grateful we had SCHOOL for emotional and academic support during those few months. The teachers knew exactly what he needed, knew how to teach dyslexic children remotely and did a wonderful job making the best of a difficult situation.

REDACTED testified that the contract for SCHOOL for the 2019-2020 school year was signed on February 14, 2019, in order to hold a seat for the upcoming school year. (Exhibit F) She added that, “We were open to considering DOE options if something appropriate was offered to us after that time. I would be thrilled to send STUDENT to public school if I felt it was a proper place for him.” REDACTED stated that the DOE has never requested to evaluate STUDENT and the last evaluation is the 2016 neuropsychological evaluation. (Exhibit C) Finally, REDACTED testified that, “We have participated in all DOE meetings which we were invited to. We visited every elementary school the DOE recommended for STUDENT”

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The 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 Free Appropriate Public Education (20 U.S.C. § 1400[d][1][A]; see Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]; 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; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir.

2005]).

A board of education may be required to reimburse parents for their expenditures for private educational services, obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). In Burlington, the Court found that Congress intended retroactive reimbursement to parents, by school officials, as an available remedy in a proper case under the IDEA (id.). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along, and would have borne in the first instance had it developed a proper IEP" (Burlington, at 370-71; see Application of the Bd. of Educ., Appeal No. 05-073).

The DOE did not participate in the hearing to present a case to establish that it offered a FAPE to STUDENT for the 2019-2020 school year and, therefore, the first prong of the analysis, under the Burlington and Carter decisions, supports the Parent’s case.

The Parent has the burden of establishing the appropriateness of the program they have provided to STUDENT (Application of a Child with a Disability, Appeal No. 95-57; Application of a Child with a Disability, Appeal No. 02-093) In order to meet that burden, they must demonstrate that the services provided offer an educational program which meets the student’s special education needs. (Burlington, 471 U.S. at 370; Application of a Child with a Disability, Appeal No. 94-29; Frank G. v. Board of Education of Hyde Park, 459 F. 3d at 363; Gagliardo v. Arlington Cent. Sch. Dist., 489 F. 3d 105 [2d Cir. 2007]) The standard used to measure the appropriateness of the parent’s placement is “not perfection.” (M.S. ex rel S.S. v. Bd. of Ed., 231 F.3d 96 [2d Cir. 2000]) “The issue turns on whether a placement - public or private- is reasonably calculated to enable the child to receive educational benefits.” (Gagliardo, 489 F. 3d at 112) A parent’s failure to select a program approved by the state in favor of an unapproved option is not itself a bar to reimbursement. (Carter, 510 U.S. 7 [1993])

I find that the Parent has prevailed with respect to the second criterion for reimbursement under the Burlington and Carter decisions. REDACTED is intimately involved with the structure, mission, staffing, and student population of SCHOOL. She has direct personal knowledge of STUDENT’s strengths, weaknesses, academic program, the ways SCHOOL addresses and meets his needs, and how instruction is differentiated for him. She is also familiar with the progress he made in the 2019-2020 school year while at SCHOOL. REDACTED provided testimony conveying the struggles STUDENT experienced in the public school program and the ways in which the SCHOOL program was tailored to his unique needs, including the small class sizes, the level of instruction and support provided, and the improvements in all aspects of his development. REDACTED and REDACTED strongly assert that SCHOOL was appropriate for STUDENT for the 2019-2020 school year. These witnesses provided persuasive testimony and supporting evidence affirming the appropriateness of the placement and demonstrating that SCHOOL addressed STUDENT’s individual needs. They established that his placement was reasonably calculated to allow him to make meaningful progress. In fact, he made meaningful progress through his attendance at SCHOOL in the 2019-2020 school year as documented in the school’s progress reports. (Exhibits I, J)

Since the DOE failed to appear for the hearing, the entirety of the Parent’s case has been unchallenged. I find that the Parent has prevailed with respect to the second criterion for reimbursement under the Burlington and Carter decisions.

The final criterion for an award of funding or reimbursement is whether the Parent’s claim is supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M. C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]). Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters" (Wolfe v. Taconic Hills Cent. Sch.

Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]). With respect to equitable considerations, a parent may be denied reimbursement upon a finding of a failure to cooperate with the CSE in the development of an IEP or if the parent's conduct precluded the CSE's ability to develop an appropriate IEP (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 86 [3rd Cir. 1999]; see Application of the Bd. of Educ., Appeal No. 04-102; Application of the Bd. of Educ., Appeal No. 04-026). In the absence of evidence demonstrating that a parent failed to cooperate in the development of the IEP, or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a claim of reimbursement (Application of a Child with a Disability, Appeal No. 04-049).

Since the DOE failed to appear for the hearing, there were no equitable factors raised to consider in terms of an order in favor of the Parent. The record clearly established the Parent’s continuous cooperation and communication with the DOE. There is absolutely no basis on which to reduce or modify the remedy for the Parent.

ORDER

• • The DOE failed to offer a FAPE to STUDENT for the 2019-2020 school year;
• • The Parent’s unilateral placement of STUDENT at SCHOOL was appropriate for the 2019-2020 school year;
• • There are no equitable considerations which would reduce or bar an award of reimbursement for the 2019-2020 school year; and, therefore,
• • The DOE shall reimburse the Parent for the tuition paid to SCHOOL for the 2019-2020 school year. in the amount of $68,980. Payment shall be made immediately, since the Parent has already submitted proof of payment. (Exhibit G).

Dated: August 12, 2022 Amy Lynne Itzla, Esq.

Amy Lynne Itzla, Esq.

Arbitrator

PLEASE TAKE NOTICE

Within 30 days of the receipt of this decision, the parent and/or Board of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act. Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

Directions and forms for filing an appeal are included with this decision. Directions and forms can also be found on the Office of State Review website: www.sro.nysed.gov/ appeals.htm

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 29, 2022

REDACTED, Esq.

Attorney

Parent

REDACTED

Mother

Parent

DOCUMENTATION ENTERED INTO THE RECORD

Parent Exhibits

A.

Ten Day Notice

8/21/2019

2

B.

Impartial Hearing Request

5/10/21

4

C.

Neuropsychological Evaluation

6/23/16

33

D.

SCHOOL Program Description undated

2

E.

Distance Learning Statement

7/2/20

2

F.

2019-2020 Re-Enrollment Contract

2/14/19

5

G.

Tuition Statement

11/5/20

1

H.

Fell Room 19-20 Schedule undated

1

I.

REDACTED School Mid-Year Report

2/6/20

16

J.

REDACTED School Year End Report

6/21/19

12

K.

Affidavit of REDACTED

4/26/22

9

L.

Affidavit of REDACTED

4/26/22

4