New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 554799 - NYC: 210900

FINDINGS OF FACT AND DECISION

Case Number: 210900

Student’s Name: [REDACTED] [REDACTED]

Hearing Requested By: Parent

Dates of Hearing: January 5, 2022

March 3, 2022

April 4, 2022

April 29, 2022

Actual Record Close Date: June 2, 2022

Hearing Officer: Jean Marie Brescia, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

January 5, 2022 For the Parent:

[REDACTED], Esq.

For the Department:

[REDACTED], District Representative

February 3, 2022 For the Parent:

[REDACTED], Esq.

For the Department:

None

March 3, 2022 For the Parent:

[REDACTED], Esq.

For the Department:

None

April 4, 2022 For the Parent:

[REDACTED], Esq.

For the Department

[REDACTED], District Representative

April 29, 2022 For the Parent:

[REDACTED], Esq.

[REDACTED] [REDACTED], Parent

[REDACTED], [REDACTED]

For the Department

None

On December 22, 2021, I was designated as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1415(j), in the matter of [REDACTED] [REDACTED], after the appointment of another hearing officer was rescinded. [REDACTED]’s parent requested the hearing on July 8, 2021 in order to challenge the Department of Education’s failure to offer [REDACTED] a free appropriate public education for the 2020-2021 school year and to seek reimbursement for tuition at [REDACTED], a non-public bilingual [REDACTED] special education religious school, and costs of related services for the 2020-2021 12-month school year. Ex. A.

A pre-hearing conference was conducted on January 5, 2022. The hearing was continued on February 3, March 3, April 3 and April 29, 2022. The Department rested its case without offering any documents in evidence or the testimony of any witnesses. Tr. 23.

The parties made joint applications on the record for extensions of the compliance dates. The applications were granted by written Orders of Extension dated January 5, March 4, April 4 and April 29, 2022.

The record closed on June 2, 2022, upon the hearing officer’s receipt and review of the complete transcript, and the Actual Record Close Date is June 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 young man whose disability, for the purposes of the IDEA, is classified as autism. Ex. A, Ex. I at ⁋ 6, IHO Ex. I.
• • [REDACTED] has been diagnosed with [REDACTED] and [REDACTED] and experiences [REDACTED]. He has difficulties processing language and with word retrieval, following routines, impulsivity, and engaging in positive social interactions, and his verbal expression is limited. IHO Ex. I; Ex. I at ⁋ 3.
• • When [REDACTED] was a young child, his parents observed that he experienced some delays. Tr. 58. Over time, he was evaluated and started occupational therapy. He continued to attend mainstream schools and was struggling with social skills. Tr. 58-59. [REDACTED]’s family was living in [REDACTED] at the time.. When he was [REDACTED] years of age, his parents placed him in a special education school. Tr. 59.
• • When [REDACTED]’s family moved to New York City in the summer of 2019. Tr. 63.,
• • [REDACTED]’s mother sent a letter to the CSE on July 1, 2019 requesting special education services from the Department and informing the Department that [REDACTED] was currently attending [REDACTED]. Ex B. When she did not receive a response from the CSE, she sent a follow up letter to the CSE on November 5, 2019. Ex. C. As of June 22, 2020, the Department still had not responded to her request for services for [REDACTED], and she reiterated her request. Ex. D.
• • [REDACTED]’s mother also submitted a ten-day notice letter to the Department on June 22, 2020. Ex. D.
• • [REDACTED]’s parents entered into contracts with [REDACTED] for [REDACTED]’s attendance at the school’s Summer 2020 program and 2020-2021 school year program. Tuition for the summer program was $8,000.00. Tuition for the September 2020 through June 2021 program (including related services) was $61,480.00, for a total of $69,480.00. Ex. E; Ex. I at ⁋ 11. [REDACTED]’s parents have paid significant sums towards the total tuition amount. Exs. J,K.
• • [REDACTED] is a small, bilingual [REDACTED] special education school for students with autism, developmental delays and related disabilities. Ex. H at ⁋ 4. The school enrolls students ranging in age from 12 through 21 years. Ex. H at ⁋ 6.
• • Students at the school have “significant academic, social-emotional and behavioral needs,” and the program focuses on functional academics, prevocational skills, social-emotional learning and support and utilizes principles of ABA, including a token economy and teaching functional academics by breaking down skills to their most basic level and teaching them incrementally. Ex. H at ⁋⁋ 7-8, 33..
• • Students are grouped into classes based upon academic and social-emotional levels and needs. Ex. H at ⁋⁋ 9, 17.
• • Classes typically include six students with one teacher and one assistant. Ex. H at ⁋ 5.
• • During the 2020-2021 school year, [REDACTED] needed a significant degree of individualized instruction and emotional support, including individual and direct instruction, constant redirection and teacher prompting and cuing, and frequent reassurance and encouragement, to engage in classroom activities. Ex. H at ⁋ 18.
• • [REDACTED]’s Summer 2020 program schedule included prayer, instructional breakfast, reading (comprehension, vocabulary and compensatory reading strategies), social skills, literacy (current events, letter writing, keeping a journal), gemara/chumash, instructional lunch, history, vocational skills, exercise/sports, and math. The September through June program also included ADL Skills, social studies, computer skills, history, and science. Ex. F. His schedule also included speech, occupational and physical therapies and counseling. Exs. F, G, H at ⁋⁋ 11, 20-21. Approximately 25 percent of school programming was religious in nature. Exs. F, H at ⁋ 41.
• • The summer program focused on vocational skills and life skills along with functional academics. Borough made progress in these areas. He learned to stack shelves in a grocery store and practiced working as a cashier. Tr. 49-50.
• • Teachers at the school kept weekly data on students’ reading decoding, fluency and comprehension. [REDACTED]’s reading fluency improved as measured by a reduction in the number of mistakes he made while reading, and he increased one year in grade level in reading. Tr. 55-56.
• • [REDACTED] made progress during the 2020-2021 school year, particularly in academics (with progress in reading decoding, reading comprehension, reading fluency, writing, spelling and math), but also in social communication skills. Tr. 49-50, 55. He also made progress in ADL skills (mealtime skills, hygiene), organizing his materials, writing sentences, spelling, and basic multiplication and division skills. A multisensory teaching approach was particularly helpful to [REDACTED] in developing reading decoding, reading comprehension and listening comprehension skills. Ex. H at ⁋⁋ 20-27.
• • [REDACTED] also made progress with respect to social and emotional skills, and benefitted from the school’s social skills programming, which focused on perspective taking, how to listen to others, maintaining eye contact and communication skills and engaging in peer interactions without becoming upset. Ex. H at ⁋⁋ 30-31.
• • The school also provided [REDACTED] with vocational programming. [REDACTED] did well with jobs requiring “hands on” work, such as stocking store shelves and packing groceries. Ex. H at ⁋⁋ 32.
• • The school’s behavior plan addressed [REDACTED]’s difficulties in completing work, appropriately responding to peers, ad responding to questions in class. He responded well to the reward system. Ex. H at ⁋ 34.
• • [REDACTED] also make progress on his related services goals. Ex. H at ⁋⁋ 35-39.
• • [REDACTED] needs a 12-month program because he needs a continuous educational program in order to make, and maintain, progress. Tr. 52.
• • The school’s principal attributed [REDACTED]’s progress to the school environment, with its small classes, individualized instruction, and social-emotional and behavioral supports, and students grouped with similarly functioning students. Tr. 51; Ex. H at ⁋⁋ 43-44.
• • [REDACTED]’s mother observed that [REDACTED] made progress at [REDACTED] in academics (including reading comprehension), in his self-esteem and with communication skills and independence skills, such as going to the store and using money to buy something. Tr. 60-61, 64-67; Ex. I at ⁋ 8.
• • When requested by the CSE, [REDACTED]’s mother consented to the CSE’s evaluation of [REDACTED]. Tr. 64.
• • CSE personnel conducted a psychoeducational evaluation of [REDACTED] in August 2021. IHO Ex. I. On the WISC-5, Borough obtained very low composite scores on the verbal comprehension scale and in fluid reasoning, with a low average score on the visual spatial scale. His full scale score was in the very low range. IHO Ex. I at 3-4. He scored in the low to below average on theWIAT-3 subtests. IHO Ex. I at 5.
• • [REDACTED]’s mother participated in an IEP meeting for [REDACTED] convened by the CSE on March 29, 2022. Tr. 64; Ex. I at ⁋ 5.

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 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).

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.

Did the Department Offer [REDACTED] a FAPE?

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.

Is [REDACTED]’s Program Appropriate for [REDACTED]?

The parent bears the burden of proof concerning the appropriateness of WDC 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 WDC 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 the school provided [REDACTED] with an educational environment in which his identified and significant special education needs were addressed, and he made progress commensurate with his unique needs and circumstances. First and foremost, [REDACTED] needed, and the school provided, small classes, intensive support functional academics, vocational-related training and social-emotional programming. The school addressed [REDACTED]’s needs as described in paragraphs 2, 12 and 22 above. [REDACTED] made progress at during the 2020-2021 school year, as described in paragraphs 14, 14 through 20 and 23 above.

At the school, [REDACTED] made progress across the range of his challenges, clearly demonstrating that the school was an appropriate special education placement for him. 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] was appropriate for [REDACTED] for the 2020-2021 school year. As a result, [REDACTED]’s parents prevail with respect to the second Burlington/Carter criterion.

The Equities 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 communicating with Department personnel, consenting to an evaluation, attending an IEP meeting when finally invited, 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).

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. 75 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, 75 percent of the tuition is subject to payment in this proceeding.

Furthermore, although [REDACTED]’s parents have paid not paid the total tuition, the debt for the full amount of the tuition is very real. [REDACTED]’s parents are unable to pay the 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. 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 fund [REDACTED]’s placement at [REDACTED] for the 2020-2021 school year. The amount of funding shall not exceed $52,110.00. The funding shall be reimbursement to [REDACTED]’s parents for any amounts they have paid to [REDACTED] and direct payment to [REDACTED] for any remaining balance.

Dated: June 2, 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

IHO Exhibit

I 8/10/2021 Psychoeducational Evaluation 7 pages

Parents’ Exhibits

Letter

Date

Name of Document

# of Pages

A

7/7/21

DPC

2

B 7/1/19 Parent letter with receipt 2

C 11/5/19 Parent letter with receipt 2

D 6/22/20 Parent letter with receipt 2

E 20-21 Tuition contract 2

F 20-21 Schedule 3

G 20-21 Provider affidavits 4

H 4/20/22 School testimony affidavit 7

I 4/25/22 Parent testimony affidavit 2

J 4/28/22 Payment affidavit I K Various

Proof of payment with loan agreements

7