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FINDINGS OF FACT AND DECISION
NAMES AND TITLES OF PERSONS WHO APPEARED
January 5, 2022
For the Student:
[REDACTED] Parent Advocate
For the Department of Education:
[REDACTED] DOE District Representative
February 17, 2022
For the Student:
[REDACTED] Parent Advocate
For the Department of Education:
[REDACTED] DOE District Representative
March 31, 2022
For the Student:
[REDACTED] Parent Advocate
For the Department of Education:
[REDACTED] DOE District Representative
April 25, 2022
For the Student:
[REDACTED] Parent Advocate
For the Department of Education:
[REDACTED] DOE District Representative
May 26, 2022
For the Student:
[REDACTED] Parent Advocate
For the Department of Education:
[REDACTED] DOE District Representative
June 29, 2022
For the Student:
[REDACTED] Parent Advocate
For the Department of Education:
[REDACTED] DOE District Representative
July 25, 2022
For the Student:
[REDACTED] Parent Advocate
For the Department of Education:
[REDACTED] DOE District Representative
August 17, 2022
For the Student:
[REDACTED] Parent Advocate
For the Department of Education:
[REDACTED] DOE District Representative
September 29, 2022
For the Student:
[REDACTED] Parent Advocate
For the Department of Education:
[REDACTED] DOE District Representative
November 7, 2022
For the Student:
[REDACTED] Parent Advocate
[REDACTED] Parent/Father
[REDACTED] Parent/Mother
For the Department of Education:
[REDACTED] DOE District Representative
[REDACTED] Head of Instructional Support
Services @[REDACTED]
[REDACTED] School Psychologist
November 14, 2022
For the Student:
[REDACTED] Parent Advocate
For the Department of Education:
[REDACTED] DOE District Representative
December 13, 2022
For the Student:
[REDACTED] Parent Advocate
For the Department of Education:
[REDACTED] DOE District Representative
January 11, 2023
For the Student:
[REDACTED] Parent Advocate
For the Department of Education:
[REDACTED] DOE District Representative
March 7, 2023
For the Student:
[REDACTED] Parent Advocate
[REDACTED] Parent/Father
For the Department of Education:
[REDACTED] DOE District Representative
April 20, 2023
For the Student:
[REDACTED] Parent Advocate
[REDACTED] Parent/Father
For the Department of Education:
[REDACTED] DOE District Representative
May 19, 2023
For the Student:
[REDACTED] Parent Advocate
[REDACTED] Parent/Father
[REDACTED] Curriculum Director @
[REDACTED]
For the Department of Education:
[REDACTED] DOE District Representative
June 27, 2023
For the Student:
[REDACTED] Parent Advocate
For the Department of Education:
[REDACTED] DOE District Representative
July 11, 2023
For the Student:
[REDACTED] Parent Advocate
[REDACTED] Parent/Father
For the Department of Education:
[REDACTED] DOE District Representative
INTRODUCTION
On December 15, 2021, New York City Department of Education (DOE) appointed me to act as the impartial hearing officer (IHO) in a case brought under the Federal Individuals with Disabilities Education Act (IDEA) [20 USC §1415(f)(3)] ("IDEA") by the parent (Parent) of [REDACTED] ([REDACTED]) for the school year 2020/21. The Parent requested the hearing by filing an impartial hearing request with the DOE on or about June 22, 2021. The DPC is carried under New York City ("NYC") Case No: 208981. The impartial hearing was held over a series of dates, to complete the record on July 11, 2023. The timelines have also been extended to allow the parties opportunity to fully prepare, secure witnesses and obtain transcripts. The record officially closed on September 7, 2023. A list of persons who appeared at the hearing and the documents entered into evidence is annexed hereto.
BACKGROUND AND POSITIONS OF THE PARTIES
For the 2020/21 school year [REDACTED] was a student classified by the DOE "Learning Disability" (Exhibit 1). At a meeting held on January 7, 2020, the DOE developed an Individualized Education Program ("IEP") for [REDACTED] and recommended that she be placed in a Special 15:1 Class for a total of twenty periods per week, along with related services of Speech Language Therapy (2x30, group of 3) and Counseling (1x30, 1:1 and 1x30, group of 5) (Exhibit 1). Parent alleges the DOE failed to offer [REDACTED] a Free and Appropriate Public Education (FAPE") for the 2020/21 school year in that failed to thoroughly and appropriately evaluate her on a timely basis, failed to develop a timely and appropriate IEP that is substantively and procedurally valid, failed to offer [REDACTED] an appropriate program and placement in a timely manner and adopted and implemented blanket policies with respect to the recommendations made on her IEP and the provision of special education services to her (Exhibit A). Parent contended the IEP was not appropriate as it failed to take into account all of the issues that impact [REDACTED]'s learning in the classroom. Further, Parent contended that upon visiting the recommended school, parents learned that the IEP could not be implemented in an appropriate manner as there was no 15:1 recommended studentto-staff ratio for elective classes. Parent alleges that on August 27, 2020 Parent notified the DOE that failing an appropriate placement from the DOE, the Parent would enroll [REDACTED] at the [REDACTED] ([REDACTED]) and seek funding/reimbursement for the 2020/21 school year (Exhibit C). The parents subsequently re-enrolled [REDACTED] at [REDACTED], which is the New York State approved private school but not recommended on [REDACTED]'s IEP. Parents filed a DPC and seek reimbursement for [REDACTED]'s tuition at [REDACTED] for the 2020/21 school year.
In an effort to support its allegations, the parent provided ten (10) pieces of evidence (Exhibits A-J) and presented two (2) witnesses: [REDACTED], Curriculum Director at [REDACTED] and [REDACTED], [REDACTED]'s father.
The DOE held the position that a FAPE was offered to [REDACTED] based upon a timely IEP (Exhibit 1) and school location letter (Exhibit 4) and that the proposed placement had a seat available to offer [REDACTED] at the start of the 2020/21 school year (T @ 62). The DOE contended the IEP team was appropriately constituted, that there was an appropriate composition of the team, and that the student's evaluations were up to date at the time of the IEP meeting.
In effort to support its allegation, the DOE submitted a documentary exhibit package consisting of fifteen (15) exhibits and presented two (2) witnesses, [REDACTED], English teacher and Head of Instructional Support at the recommended placement, and [REDACTED], school psychologist present at the IEP meeting.
FINDINGS OF FACT AND DECISION
The Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) was enacted with the primary purpose to ensure that students with disabilities have available to them a free and appropriate public education (FAPE) (20 U.S.C. § 1400[d][1][A]; see Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]; Bd. of Educ. v. Rowley, 458 S. Ct. 176, 179-81, 200-01 [1982]; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [2d Cir. 2006]). It is clear that the legislative intent of 20 US Code Section 1412 of the IDEA is to provide a FAPE to all children with disabilities so that these individuals may ultimately lead productive independent lives as adults, to the maximum extent possible (20 U.S.C. Sx 1400[d][1][A]; see Mrs. W v. Tirozzi, 832 F.2d 748 [2nd Cir. 1987]. A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.17; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.22). An IEP is designed as a "written statement" that addresses the educational needs of a child with a disability (20 U.S.C. § 1401[14]; 34 C.F.R. § 300.22; 8 NYCRR 200.1[y]). At the beginning of each school year, a school district is required to have an IEP in effect "for each child with a disability in its jurisdiction" (20 U.S.C. § 1414[d][2]; 34 C.F.R. § 300.323[a]; see also Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 194 [2d Cir. 2005] (finding the district fulfilled its legal obligations by providing the IEP before the first day of school). The student's recommended program must also be provided in the least restrictive environment (LRE) (34 C.F.R. § 300.114[a]; 8 NYCRR 200.6[A][1]). A FAPE is offered to a student when the board of education (a) complied 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 (Bd. of Educ. v. Rowley, 458 U.S. at 176, 206, 207 [1982]). The IDEA directs that, in general, a decision by an impartial hearing officer or state review officer must be made on substantive grounds based on a determination of whether or not the child received a FAPE (20 U.S.C. § 1415[f][3][E][i]). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child'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 child, or (c) caused a deprivation of educational benefits to the child (20 U.S.C. § 1415[f][3][E][ii]; see 8 NYCRR 2005[j][4][ii]). The IDEA mandates that a student with a disability be provided with a FAPE tailored to meet his unique needs and one that is "reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances." Endrew F. v. Douglas Cty. Sch. Dist., 580 U.S. ___, 137 S.Ct.988, 999 (2017). A focus on the particular child is at the core of the IDEA. Endrew F., 137 S.Ct. at 999. Under 20 U.S.C. Section 1414(d)(3)(A), the IDEA mandates an IEP team to consider a child's strengths, weaknesses and deficiencies, as well as the results of the most recent evaluations of the child together with developmental and functional needs of the child. In order to determine the student's requirements and needs, the team must review and consider evaluations, assessment and information provided by the child's parents, teachers and service providers and thereon determine the type of program required for the child. A board of education may be required to pay for educational services obtained for a child by the child's 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. (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; see also Frank R. and Dianne R. v. Bd. of Educ. of Hyde Park,459 F.3d 356 [2d Cir. 2006], cert denied, Board of Educ. of Hyde Park Cent. School Dist. v. Frank R.,2007 WL 2982269 [Oct. 15, 2007].
The case at hand is a tuition reimbursement case and is therefore governed by the holding of the U.S. Supreme Court in Burlington School Comm. v. Dept of Education (471 U.S. 359 [1985]). That case set forth a three-prong test for determining if tuition reimbursement is warranted: (1) were the services offered by the school district inadequate or inappropriate; (2) where the services selected by the parents appropriate; and (3) do equitable considerations support the parents' claim. Recently enacted state legislation puts the burden of proof for the first prong on the school district and for the second prong on the parent (Chap. 583 of Laws of 2007).
Prong I:
An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the child's needs, establishes annual goals and short-term instructional objectives which are related to the child's educational deficits, and provides for the use of appropriate special education services to address the child's special education needs. Application of a Child with a Disability, Appeal No 93-12; Application of a Child with a Disability, Appeal No 93-9; Application of a Child with a Handicapping Condition, Appeal No 92-7; Matter of Handicapped Child, 22 Ed Dept Rep 487, March 11, 1983. Children must be assessed "in all areas of suspected disability" using "a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information." See 20 U.S.C. §1414(d); 34 C.F.R. § 10 (emphasis added). "An observation of the student in the student's learning environment ... to document the student's academic performance and behavior in the areas of difficulty" is also required (see 8 N.Y.C.R.R. § 200.4[b][1][iv]; 20 USC § 1414(b)(3)(ii)). In interpreting evaluation data for the purpose of determining if a student is a student with a disability ... the committee on special education and other qualified individuals must draw upon information from a variety of sources, including aptitude and achievement tests, parent input, and teacher recommendations, as well as information about the student's physical condition, social or cultural background, and adaptive behavior; and ensure that information obtained from all these sources is documented and carefully considered (see 8 N.Y.C.R.R. § 200.4[c][1] (emphasis added)). In the case of a student whose behavior impedes his or her learning or that of others, the CSE is required to consider strategies, including positive behavioral interventions, and supports and other strategies to address that behavior (see 8 N.Y.C.R.R. § 200.4[d][4]).
In the instant matter, the DOE presented as its first witness [REDACTED], English Teacher and Head of Instructional Support Services at the recommended placement. [REDACTED] testified in support of the DOE's position that the recommended placement would have been able to implement the IEP and had a seat available for [REDACTED] for the 2020/21 school year (T @ 61-62). However, during cross-examination [REDACTED] admitted the proposed placement would be able to offer the special education programming for four periods - Math, ELA, Social Studies, and Science and that the remainder of the periods would constitute elective classes with a range of 30-34 student and max out at 34 students except range gym classes which have could max out at a 50 student capacity (T @ 65-66).
Next, the DOE present [REDACTED], school psychologist and district representative who participated in the IEP meeting disputed at hand. She testified that the recommendations made at the January 7, 2020 IEP were based on available evaluations at the time, to include classroom observation, social history update, information provided by [REDACTED] regarding her academic needs, as well as speech and social-emotional needs (T @ 72). [REDACTED] acknowledged Parent was not in agreement with the program recommendation and testified that "the parent felt like she was -- she was thriving at [REDACTED] where she's been at for a few years, so they wanted to continue with that school" (T @ 73). While [REDACTED] opined during her testimony that [REDACTED] could function in a 15:1 setting in a community school (T @ 73-76), during cross-examination Parent advocate drew attention that the IEP team failed to take into account that all test results, evaluations and progress relied upon at the meeting were based on 1:1 setting and that at [REDACTED] [REDACTED] was in a 12:1:1 setting (T @ 80, 84). Parent emphasized the disagreement with the team recommended program was based upon class size and staffing ratio and the IEP failed to describe how [REDACTED] would receive the 1:1 support she requires in the classroom to be properly supported so she could successfully access the curriculum and be appropriately educated (T @ 84-85 and Exhibit IHO-2).
Upon due consideration, I find the DOE failed to meet its burden of showing it provided a FAPE to [REDACTED] for the 2020/21 school year by providing an appropriate IEP and placement for [REDACTED], resulting in a finding of a FAPE denial. The Parents have met the first of the three Burlington/Carter criteria for tuition reimbursement.
Prong II:
Having determined that the DOE did not offer the student a FAPE for the 2020/21 school year, I now proceed to evaluating the appropriateness of the parents' unilateral placement of the student at [REDACTED]. The parent's failure to select a program approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Florence County Sch Dist Four v. Carter 510 U.S. 7 [1993]). The private placement need not employ certified special education teachers, Carter, supra. The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of the unilateral placement: "No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. 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". (Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).
The documentary evidence and testimony in this case establishes that [REDACTED] is a New York State Regents accredited program for students with learning differences, approved to accept classifications of "Learning Disabled", "Speech and Language Impaired", "Other Health Impaired", "Emotionally Disturbed" and "Autism" (Exhibit B). The student to staff class ratio is 12:1:1, which allows ample support to address each individual students' various individual needs (Exhibit B).
[REDACTED] utilizes a multidisciplinary approach for each student. [REDACTED] attested "Each student's program is modified based on their specific needs as indicated on the IEP…The methodologies utilized by [REDACTED]'s teachers are the use of multi-modalities, differentiation, extra in-class support, 1:1; instruction, tasks broken down, the use of assistive technology and management needs as appropriate" (Exhibit J). She attested to being familiar with [REDACTED] and testified that [REDACTED] is a student who needs academic and social-emotional support in a structured setting. [REDACTED] needs 1:1 support, a small class setting and accommodations and management needs that support her IEP goals and described the issues that impact [REDACTED]'s classroom functioning to include difficulties with reading comprehension, staying on task, grasping new topic, difficulty providing multiparagraph or essay responses using text evidence and solving multi-step mathematical problems. Further, she asserted that [REDACTED] is easily frustrated and suffers from anxiety which impede her learning (Exhibit J). She continued to explain the specific methodologies utilized in the classroom for [REDACTED], specifically small group instruction, extended time, scaffolding, differentiated instruction, tasks broken down, use of varied modalities, assistive technology and other any other supports as needed (Exhibit J). The record supports that [REDACTED] received related services of Counseling (2x30, group and 1x30, 1:1) as well as Speech Language (1x30, group). [REDACTED] concluded her testimony by opining that [REDACTED] supported [REDACTED] and provided the management needs and supports to her academically, socially and emotionally (Exhibit J).
In the case at hand, the DOE cross-examination of parent witnesses did not generate a material challenge to parent assertions. Contrarily, the evidence and testimony presented by the parent supports that [REDACTED] provided a rich supportive environment that correlated well with [REDACTED], that the curriculum was specifically tailored to meet [REDACTED]'s needs and that she received a highly individualized instruction that enabled her to make appropriate progress. I find that [REDACTED] made meaningful progress at [REDACTED] for the 2020/21 school year across the board: academically, socially and emotionally. The evidence and testimony presented by the parent supports that [REDACTED] was an appropriate placement for [REDACTED] during the 2020/21 school year and was "specifically designed to meet the unique needs" of the student Frank G, supra and that [REDACTED] has made progress therein (Exhibits E and J).
Prong III:
Having found [REDACTED] an appropriate placement, I now consider equitable considerations, the final criterion for a reimbursement award. In weighing the equities, "the critical consideration, as the Court sees it, is whether they have cooperated in good faith to attempt to develop an IEP to the maximum extent possible, Schaffer, supra. Herein, the DOE argues the equities do not favor the parent as parents always intended to re-enroll [REDACTED] at [REDACTED]. Particularly, the DOE asserted "Parent did not consider seriously public school as they arrived to [REDACTED] for a tour without [REDACTED]'s IEP but more than not bringing [REDACTED]'s IEP to the tour of [REDACTED], the Parents did not agree with the recommendation and expressed their disagreement at the IEP meeting" (IHO-1).
The DOE's allegation that herein parents acted with bad faith as they lacked true intent to place [REDACTED] in a public school, despite supposed cooperation throughout the IEP process is just that – a mere allegation as the record fails to support that Parents acted in bad faith. I find that indications are that the Parent cooperated with the DOE and did not interfere with the DOE's obligation to provide a FAPE for the 2020/21 school year. While herein parents expressed disagreement with the CSE program recommendation for the 2020/21 school year, that alone does not constitute bad faith. The record reflects that [REDACTED]'s mother participated in the IEP meeting for the 2020/21 school year; that she expressed disagreement with the recommended program based on class size and lack of 1:1 support required by [REDACTED]; that parents visited the proposed placement and determined that the IEP in place for the 2020/21 school year could not be implemented; and that parents provided the requisite written notice to the CSE regarding intent to reenroll her daughter for the 2020/21 school year at [REDACTED] in a timely manner.
I find (1). that the DOE failed to offer the student a FAPE for the 2020/21 school year, (2). that the unilateral placement of the student at [REDACTED] was appropriate (3). that the program at [REDACTED] was "reasonably calculated" to provide [REDACTED] with meaningful educational benefits and (4). that equitable considerations weighed in favor of the parents' request for reimbursement for all costs associated with the placement of the student at the [REDACTED] for the 2020/21 school year.
ORDER
Therefore, it is hereby ordered that within thirty (30) days of receipt of this Order the Department of Education shall directly reimburse all tuition costs for the student's unilateral placement at [REDACTED] for the 2020/21 school year in the amount of $44,134.00.
All reimbursements and direct funding shall be supported by the presentation of appropriate documentation.
Dated: September 12, 2023
Maria R. Dispenza
MARIA R. DISPENZA, ESQ.
Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
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.
DOCUMENTATION ENTERED INTO THE RECORD ON November 7, 2022
1. DOE: IEP, 01/07/20 –28pp DOE
2. Minutes, 01/07/20 –3pp 3. Student Invitation, 01/07/20 -1pp 4. PWN and SLL, 08/06/20 –11pp DOE
5. Psycho-educational Evaluation, 09/27/17 –4pp DOE
6. Social History Update, 01/07/20 –1pp 7. Classroom Observation, 01/07/20 –1pp 8. Math Present Level of Performance, Undated –1pp 9. English Present Level of Performance, Undated –1pp DOE
10. Speech Present Level of Performance, Undated –9pp 11. Counselor Present Level of Performance, Undated –6pp 12. Counseling Group Present Level of Performance, Undated –8pp 13. Transition, Undated –2pp 14. Vocational 1, 11/1/2019 –3pp 15. Level 1 Vocational Interview, 12/6/19 -1pp DOE
DOCUMENTATION ENTERED INTO THE RECORD ON March 7, 2023
A. Parent: Impartial Hearing Request, 06/22/21 -4pp
B. Program Description, Undated -1pp
C. Ten Day Notice, 08/27/20 -2pp
D. Class Schedule, 2020/21 -1pp
E. Progress Report, 06/15/21 -7pp
F. Enrollment Contract, 08/11/20 -1pp
G. Affidavits of Payment, 07/19/223 -1pp
H. Attendance Record, 2020/21 -1pp
PARENT
I. Proof of Payments, 2020/21 -10pp
J. Affidavit of Testimony, 11/15/22 -5pp
DOCUMENTATION ENTERED INTO THE RECORD ON July 11, 2023
IHO:
IHO-1. DOE Closing Brief, 07/07/23 -10pp
IHO-2. Parent Closing Brief, 07/07/23 -11pp