New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 554912 - NYC: 211014

FINDINGS OF FACT AND DECISION

Student’s Name: REDACTED (“Student”)

Date of Birth: REDACTED

District: New York City Department of Education (“DOE” or the “District”)

Hearing Requested by: REDACTED, Esq., of Law Offices of REDACTED, on behalf of REDACTED (the “Parent”) and the Student

Record Close Date: March 11, 2022

Hearing Officer: Randy Glasser, Esq.

On July 12, 2021, REDACTED, Esq., of Law Offices of REDACTED, filed a due process complaint (“DPC”) on behalf of the Parent and her child, the Student, regarding his special education program and services for the 2020/2021 school year (Parent Ex. “A”). Pursuant to a Change in Hearing Officer resulting from the appointment of the prior Hearing Officer being rescinded, this Hearing Officer was appointed as the Impartial Hearing Officer (“IHO”) on December 16, 2021. A prehearing conference was held on January 5, 2022, and Hearing was held on February 10, 2022. The District was represented by REDACTED, and the Parent and Student by REDACTED.

The District submitted Exhibits “1” – “2” into evidence, but did not put on a direct cause or present rebuttal testimony (Tr. 36-37, 57). The Parent submitted into evidence Parent Exhibits “A” through “P”, which included the Testimony Affidavit of REDACTED, Director of REDACTED at REDACTED, and the Parent (see Parent Exhibit “O”, and “P”, respectively). Lists of the appearances and documentary evidence submitted in this proceeding are appended to this Order. The compliance date for this matter was extended to March 31, 2022 (IHO Ex. “I”).

BACKGROUND AND POSITIONS OF THE PARTIES

The Student is REDACTED years old, classified as a student with a Speech or Language Impairment, and diagnosed with Other Specified Neurodevelopmental Disorder associated with REDACTED, and underdeveloped motor skills, including poor visual motor integration, coordination, and precision, which in conjunction with his weak visual-spatial skills and slow processing speed, “can severely interfere with his ability to perform daily academic tasks (e.g., copying information from the smartboard, taking notes while listening, generating legible handwriting, and drawing and tracing). His poor dexterity makes common classroom activities, such as gathering up his materials, packing his bookbag, removing and replacing caps (e.g., on writing implements, glue sticks, water bottles) exceedingly effortful and time consuming. In turn, this leaves him less available for learning and with less energy and time to devote to the more cognitive aspects of school.” (Parent Ex. “B”). The Student’s attentional control is “variable”, and there is a lot of variability in his academic profile, in that he shows some age-level foundational literacy skills while his handwriting is immature, difficult to read and reflective of his graphomotor and visual perceptual weaknesses; his math skills are consistently well below age expectations, and his weaknesses in working memory and processing speed can interfere with his ability to carry out calculations efficiently (Id.) (See “Summary” in neuropsychological evaluation at Id. at pp. 16-19)

The Parents unilaterally placed the Student in REDACTED in River’s Edge (“REDACTED” or “the School”) for the 2020/2021 school year for which she now seeks tuition and related services reimbursement/funding (Parent Ex. “A”; Id. at ¶¶17-19).

The Parent expressed the position that due to the procedural and substantive violations set forth in the DPC and as proven at the Hearing, the DOE failed to provide a free appropriate public education (“FAPE”) to the Student by denying him the “educational opportunity and benefit and inhibiting parental participation in the process”, REDACTED is an appropriate setting for the Student, and the equities support the Parents (Id.) The Parent therefore maintains she is entitled to prospective funding/direct payment of the Student’s Tuition and related services at REDACTED for the 2020/2021 school year (or tuition and related services reimbursement (Parent Ex. “A”), (see Parent’s opening statement (Tr. 37-42), and closing statement (Tr. 58-66).

The DOE summed up its position as follow in its opening statement, “The DOE is not calling any witnesses or presenting a case in defense of the 2020 IEP. The District's position is that the placement process through Central Based Support Team should continue until an appropriate placement is located” (Tr. 36-37; see entire opening statement at Tr. 35-37), and in its closing statement stated, “I have nothing further to add to the record, other than to confirm that the District holds the position that if tuition is awarded for the '20/'21 school year, it should not include reimbursement for any portion of the day or the week devoted to religious instruction or practice, as this would be an inappropriate use of public funds” (Tr. 65).

The Student’s eligibility and classification are not at issue in this case.

FINDINGS OF FACT AND DECISION

A. Introduction: The IDEA provides that children with disabilities are entitled to a FAPE (20 U.S.C. § 1400 (d)(1)(A)). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensively written IEP (Id., 20 U.S.C. §1414(d); 34 C.F.R. § 300.17). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through, the IDEA's procedures, and is (c) reasonably calculated to enable the student to receive educational benefits. Board of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas County Sch. Dist., RE-1, 137 S. Ct. 988 (2017).

Decisions of impartial hearing officers must be on substantive grounds based on a determination of whether the student received a FAPE (8 NYCRR § 200.5(j)(4)(i)), except:

In matters alleging a procedural violation, an impartial hearing officer may find that a student did not receive a free appropriate public education only if the procedural inadequacies impeded the student’s right to a free appropriate public education, significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of a free appropriate public education to the parent’s child, or caused a deprivation of educational benefits. Nothing in this paragraph shall be construed to preclude an impartial hearing officer from ordering a school district to comply with procedural requirements under this Part and Part 201 of this Title 8 NYCRR § 200.5(j)(4)(ii).

Id. (Emphasis added.)

School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement (NYS Educ. Law § 4404(1)(c)).

• • The IDEA empowers a hearing officer to grant the relief he/she deems appropriate. 34 CFR §300.516(c)(3). One such remedy is reimbursement of tuition and related expenses. Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); Burlington Sch. Comm. v. Mass. Dep’t. of Educ., 471 U.S. 359, (1985). Notably, the mere fact that the state educational agency and/or LEA has not approved the private school placement does not bar the parents from reimbursement. Florence County Sch. Dist. Four v. Carter, supra.

REDACTED, Director of the School, testified regarding her responsibilities and the program the Student attends (Parent Ex. “O” at ¶¶4-14), how she became familiar with the Student and her involvement with and knowledge about the Student (Id. at ¶¶15-17); the School’s assessment of the Student at the beginning of the school year, and the results (Id. at ¶18); about the Student, including his areas of need, how they are addressed by the School, and how the School met the Student’s academic needs (Id. at ¶¶19-24); the related services he received and how they addressed his areas of need (Id. at ¶¶ 25-29); the Student’s reading instruction, phonics program, and the progress made during the school year (Id. at ¶¶30-36); the Student’s math instruction, and his progress during the school year (Id. at ¶¶37-40); the Student’s instruction and progress in Hebrew Reading (Id. at ¶41); the Student’s progress in Social Skills training/socially (Id. at ¶¶42-44); the religious portion of the Student’s schedule and the fact that his program was 85.38% secular (Id. at ¶¶45-46); the Student progress from September 2020 to June 2021 and what it at the School it can be attributed to (Id. at ¶¶47-48); the School was open for in-person instruction the entire 2020/2021 school year (Id. at ¶49); that the School overall met the Student’s needs, and how (Id. at ¶¶50-51).)

The Parent testified regarding the Student’s diagnoses, that he received services through Early Intervention and by the CPSE (Parent Ex. “P” at ¶2), the preschool he attended (Id. at ¶3), the Student’s placement and special education program pursuant to his IEP for kindergarten (Id. at ¶4), that she requested a more supportive classroom for the 2019/2020 school year, his placement and how he performed (Id. at ¶5); the Student’s IEP meeting on May 26, 2020, the IEP team’s recommended placement and the Parent’s concerns regarding such placement, including that she did not think the Student was prepared to move onto the next grade, and the IEP is silent regarding his remote learning progress and needs (Id. at ¶¶6-9); the end of the year progress report received by the Parent showing that he had not met several of his goals and was not getting what he needed (Id. at ¶10); the evaluation by Dr. REDACTED at the REDACTED and findings (Id. at ¶11); the Student was not getting what he needed in his 12:1+1 class at REDACTED, the letter she wrote to the CSE about her concerns, to which the DOE did not reply, and Dr. REDACTED evaluation which was not reviewed until more than one (1) year later at a CSE meeting in November 2021 and at that meeting, the CSE agreed that the Student needed more support and recommended his placement be changed to an 8:1+1 class in a nonpublic school (Id. at ¶¶12 – 15, 16; Parent Ex. “C”); the Parents signed a contract with REDACTED on June 30, 2020 and why for ONE HUNDRED AND TWO THOUSAND DOLLARS ($102,000.00) (Id. at ¶¶17-20, Parent Ex. “H”); why the tuition is a financial hardship for the family (Id. at ¶¶21-22; Parent Ex. “M”); why REDACTED was an appropriate placement for the Student, that he was provided with the related services he needed, received in-person learning all year, the Student had a “very successful year” at REDACTED and why, and that REDACTED AB was able to meet the Student academic and related services needs for the 2020/2021 school year (Id. at ¶¶23-28)

B. Tuition Reimbursement/Direct Funding: A board of education may be required to pay for educational services obtained for a child by the child's parent, (1) if the services offered by the board of education were inadequate or inappropriate, (2) the services selected by the parent were appropriate, and (3) equitable considerations support the parent's claim (Burlington Sch. Comm v. Mass. Dep’t. of Educ., supra; Florence County Sch. Dist. Four et al. v. Carter, supra; see also Frank G. and Dianne G. v. Board of Educ. of Hyde Park, 459 F.3d 356 (2d Cir. 2006), cert denied, Board of Educ. of Hyde Park Cent. Sch. Dist. v. Frank G., 2007 WL 2982269 (2007). Accordingly, the above-stated three (3) prong analysis (the “Burlington/Carter Criteria”) is applied to determine whether the board of education is required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents. Id.

The inquiry made pursuant to the first prong, may go beyond the appropriateness of the student’s IEP and/or placement and encompass other FAPE claims (see 20 USC §1412(a)(10)(C)(ii); 34 C.F.R. 300.148(a) and (c); Forest Grove v. T.A., 557 U.S. 230 (2009); P.C. Oceanside Union Free Sch. Dist., 818 F. Supp. 2d 516 (E.D.N.Y. 2011); Mr. N.C. v. Bedford Cent. Sch. Dist., 300 F. App’x 11 (2d Cir. 2009). To determine whether the school district made FAPE available to the student in a timely matter, Rowley’s two-part test, as modified by Endrew F. v. Douglas County Sch. Dist., RE-1, supra, for appropriateness should be applied. Specifically, the hearing officer must determine whether the school district complied with the procedural requirements of the IDEA and whether the IEP is reasonably calculated to enable the child to make appropriate progress in light of her circumstances. Id. “An appropriate educational program therefore begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services.” (See Application of the Dept. of Educ., Appeal No. 07-018 (2007)). Thus, the annual goals and short-term objectives should be consistent with, and relate to, the identified needs and abilities of the student. See Application of a Student with a Disability, Appeal No. 14-078 (2015) (citing 20 U.S.C. § 1414(d)(1)(A)(i)(II); 34 CFR § 300.320(a)(2)(i); 8 NYCRR § 200.4(d)(2)(iii)).

While the Second Circuit has emphasized that school districts must comply with a checklist of procedures for developing a student’s IEP, the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA. See A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 (2d Cir. 2009). Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies: (a) impeded the student’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 student; or (c) caused a deprivation of educational benefits to the student (20 U.S.C. §1415(f)(d)(E)(ii); 34 C.F.R. §300.513(a)(2); 8 NYCRR §200.5(j)(4)(ii)).

In the instant case, the DOE failed to put on a direct case, or present rebuttal testimony (see infra). Thus, the District chose to rest on the documentary evidence (see infra). As aforementioned, the DOE has the statutory burden of persuasion and production in this case, to show that the program and services offered by the DOE pursuant to the Student’s IEPs were adequate or appropriate in order to satisfy Prong I of the Burlington/Carter Criteria. Accordingly, the District failed to proffer sufficient documentary or any testimonial evidence or otherwise prove that it had offered the Student a FAPE for the 2020/2021 school year, e.g., whether it offered a program that “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas County Sch. Dist., RE-1, 137 S. Ct. 988 (2017).

Due to the DOE’s failure to satisfy the first prong of the Burlington/Carter criteria, the burden shifts to the Parent to prove that the unilateral placement was appropriate or proper. Burlington Sch. Comm., 471 U.S. at 369 and 370; see also Florence County Sch. Dist. Four et al. v. Carter, 510 U.S. at 15. In order to meet this burden, the Parent must establish, by a preponderance of the evidence, that the unilateral placement provides “educational instruction specifically designed to meet the unique needs of the student” (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d. Cir. 2007)). In this regard, the court in Gagliardo explained:

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.

Id. at 112 (quoting, Frank G., 459 F.3d at 364-65).

However, the private school placement “need not meet the IDEA’s definition of a free and appropriate public education” or “state education standards or requirements” (Frank G. v. Board of Educ., at 364). Moreover, the private placement need not provide certified special education teachers or an IEP. Parental placements are not subject to the same mainstreaming requirements as a school district placement. The private school placement must be reasonably calculated to enable the child to receive educational benefits, and must be likely to produce progress, not regression. Id.

In the instant case, the testimony and documentary evidence overwhelmingly support the Parent’s claim that the Student’s placement at REDACTED provides him with educational instruction that is specifically designed to meet his unique special education needs, supported by such services that are necessary to permit him to benefit from instruction and established that the Student has, in fact, made meaningful progress at the School (see Infra). In this regard, and as aforementioned both Ms. REDACTED and the Parent described how REDACTED addressed the Student’s needs, resulting in him having a very successful year (see: infra). While the Comprehensive Student Plan (“CSP”) and progress reported therein further support the fact that REDACTED addressed the Student’s needs (Parent Ex. “D”). In this regard the CSP reports on the Student’s progress in reading class p. D-6, phonics class p. D-9, math class p. D-12, because of mastery of the Hebrew alphabet and ability to identify the sound of each letter p. D-14, speech and language therapy p. D-16, each area of occupational therapy p. D-19, and physical therapy p. D-19. Accordingly the Parent has satisfied her burden regarding Prong II.

The determination of whether, or not equitable factors support a parent’s claim for tuition reimbursement hinges, in large part, on whether, the parent cooperated with the CSE. In the instant matter, the DOE failed to provide any evidence and/or raise any equitable factors, which would preclude or limit tuition reimbursement for the Parent’s unilateral placement of the Student at REDACTED for the 2020/2021 school year. In fact, when the Parent provided notice to the DOE that she planned to unilaterally enroll the Student at REDACTED for the 2020/2021 school year, the DOE failed to respond (see: infra).

Moreover, the Parent testified that even though the signed the contract with REDACTED on June 30, 2020 to hold a spot for the Student, they could withdraw from the contract if they kept the Student in the DOE public school program, as long as they informed REDACTED of such decision by October 15, 2020 (Parent Ex. “P” at ¶¶ 17-18).

If we felt this his IEP was appropriate we would be released from the contract an tuition payments. The only tuition we would be responsible for would be for any time period that the Student attended REDACTED.

As a result, we were comfortable signing the contract in June because we would be released from our financial obligations if the school and DOE addressed our concerns and provided [the Student] with a proper program.

(Id. at ¶¶ 18-19).

Based on the foregoing, this IHO finds the Parent has satisfied the third prong of the Burlington/Carter Criteria for tuition reimbursement. Having met all three (3) of the Burlington/Carter Criteria, the Parent is entitled to reimbursement for the cost of the Student’s tuition at the School for the 2020/2021 school year. The record in this case establishes that the Student’s total annual tuition, including related services at REDACTED for the 2020/2021 school year was ONE HUNDRED AND TWO THOSUAND DOLLARS ($102,000.00), of which the Parent has paid TWO THOUSAND FIVE HUNDRED DOLLARS ($2,500.00), with a balance due of NINETY NINE THOUAND FIVE HUNDRED DOLLARS ($99,500.00) (see: Infra; Parent Ex. “H”, “I, “N”, and “S”). Moreover, pursuant to the Student’s schedule, and testimony by REDACTED, the Student receives nonsecular education EIGHTY FIVE POINT THREE EIGHT FIVE PERCENT (85.385%) of the time when attending REDACTED (Parent Ex. “O” at ¶46). Accordingly, the Parent is entitled to tuition reimbursement in the amount of.853855 X $102,000.00 = $87.092.70, representing the non-religious portion of the Student’s tuition for the 2020/2021 school year.

However, the Parent maintains it is a financial hardship to fund her child’s tuition at the School (Parent Ex. “P” at ¶21). In this regard the Parent submitted Ex. “M”, which is the Parents’ 1040/Tax Return, for 2020. Since the total household income for the Student’s family for 2020 was ONE HUNDRED FIVE THOUSAND EIGHT HUNDRED AND NINETEEN DOLLARS ($105,819.00), this IHO finds that the Parent provided detailed and uncontradicted information as to her lack of income and financial resources. Therefore, the Parent has shown that it, would be a financial hardship for her to fund the Student’s aforementioned tuition at REDACTED for the 2020/2021 school year, totaling ONE HUNDRED AND TWO THOUSAND DOLLARS ($102.000.00), and is therefore requesting the DOE be ordered to pay such tuition directly to the School (see: Infra).

As explained by the Court in Mr. & Mrs. A. ex rel. D.A. v. New York City Dept. of Educ., 769 F. Supp 403 (S.D.N.Y. 2011):

Within this Circuit, a number of courts have stated or suggested in dicta that a direct tuition remedy is available where parents have presented a meritorious Burlington claim but lack the financial means to pay private school tuition out-of-pocket. For example, in Connors v. Mills, 34 F. Supp. 2d 795 (N.D.N.Y. 1998), plaintiff sought prospective payment of tuition costs at a non-approved private school, where the school district had conceded that it could not provide a FAPE to her child. Connors, 34 F. Supp. 2d at 797, 799. The school district contended that IDEA does not authorize prospective direct payment of private school tuition, and that plaintiff was required "to front the costs of unilateral placement and thereafter to request due process review in order to obtain reimbursement for same." Id. at 800. The court concluded that the school district could be required, under § 1415, "to pay the tuition directly" to the private school:

once the Burlington prerequisites relative to a non-approved private school are met, and a parent show that his or her financial circumstances eliminate the opportunity for unilateral placement in the non-approved school, the public school must pay the cost of private placement immediately. Id. at 805-06.

Id. at 425.

Since the Parents have presented a “meritorious Burlington claim but lack the financial means to pay REDACTED’s tuition out-of-pocket”, the direct payment to REDACTED of the Student’s tuition for the 2021/2022 school year, is an appropriate remedy in this case (see: Connors v. Mills, 34 F.Supp.2d 795 at 805-806, 132 Ed. Law Rep. 767 (N.D.N.Y. 1998), Mr. & Mrs. A. ex rel. D.A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403 (S.D.N.Y. 2011)).

Moreover, under 20 U.S.C. §1415[(i)(2)(C)(iii) direct retroactive payment is an appropriate remedy in proceedings under IDEA (see: Mr. and Mrs. A. ex rel. D.A. v New York City Dept. of Educ., 769 F.Supp. 2d 403, 406, 428 (S.D.N.Y. 2011) in which the court held "[W]here a private school is willing to enroll the student and take the risk that the parents will not be able to pay tuition costs or will take years to do so parents who satisfy the Burlington factors have a right to retroactive direct tuition payment relief." Id. at 428.

ORDER

IT IS HEREBY ORDERED that no later than thirty (30) days after this Decision, the DOE shall make direct payment to REDACTED, for the Student’s tuition, in an amount of EIGHTY FOUR THOUSAND FIVE HUNDRED NINETY TWO DOLLARS AND SEVENTY CENTS ($84,592.70); and

IT IS FURTHER ORDERED that no later than thirty (30) days after this Decision, the DOE shall reimburse the Parent in an amount of TWO THOUSAND FIVE HUNDRED DOLLARS ($2,500.00).

March 11, 2022

Randy Glasser

Randy Glasser, Esq.

Impartial Hearing Officer

NAMES AND TITLES OF APPEARANCES ON FEBRUARY 10, 2022

DOE

REDACTED, District Representative

Parents

REDACTED, Esq., Law Offices of REDACTED

REDACTED, Esq., Law Offices of REDACTED

REDACTED, Director, REDACTED at REDACTED

REDACTED, Parent

DOCUMENTS ENTERED INTO THE RECORD

IHO Exhibits

I. Order of Extension, 2/10/2022, 1 page

• • DOE Exhibits 1. IEP, 5/26/2020, 32 pages 2. IEP, 11/4/2021, 26 pages
• • Parent Exhibits A. Due Process Complaint, 7/12/2021, 5 pages B. Neuropsychological and Educational Evaluation, July/August 2020, 25 pages C. Ten Day Notice, 8/6/2020, 4 pages D. Comprehensive Student Plan, 2020-2021 School Year, 22 pages E. Fountas & Pinnell Results, 2020-2021 School Year, 1 page F. REDACTED In-Person Instruction & Tuition, 2020-2021 School Year, 1 page G. REDACTED Distance Learning Plan, 2020-2021 School Year, 1 page H. Tuition Contract, 6/30/2020, 1 page I. Tuition Payment Affidavit, 7/14/2021, 1 page J. Attendance Record, 2020-2021 School Year, 1 page K. Program Description, undated, 1 page L. Class Schedule, 2020-2021 School Year, 1 page M. Tax Return, 2020, 3 pages N. Proof of Payment, various dates, 12 pages O. Testimony Affidavit, 2/8/2022, 10 pages P. Testimony Affidavit, 2/9/2022, 4 pages

NOTICE OF RIGHT TO APPEAL

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.