New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 555967- NYC: 224099

FINDINGS OF FACT AND DECISION

Case Number: 211991

Student’s Name:1 Student

Date of Birth: REDACTED

School District: New York City Department of Education Hearing Requested by: Parent(s)

Request Date/Date Complaint Filed: August 30, 2021 Date(s) of Hearing: June 1, 2022

Actual Record Closed Date: November 3, 2022 Date of Decision: November 4, 2022

Date of Distribution if Different than Decision Date: Hearing Officer: Amy Lynne Itzla, Esq.

1 Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 1, 2022

For the Student:

REDACTED, Esq., Attorney

For the Department of Education:

INTRODUCTION AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parent’s Due Process Complaint (“DPC") filed on or about August 30, 2021. (Exhibit P- A)2 The record does not contain any response from the Department of Education to the allegations contained in the DPC. The undersigned Impartial Hearing Officer was appointed to this matter on December 27, 2021, by the New York City Department of Education.

A hearing was held on June 1, 2022. It was a closed hearing, conducted by video/teleconference, with the presence of a court reporter to create a written transcript. The Parent was represented by REDACTED, Esq. The DOE did not appear for the hearing. Parent exhibits A through M were entered into evidence.3 The record was closed on June 1, 2022.

Prior to the hearing, status conferences were held on January 31, 2022, and March 31, 2022. REDACTED, Senior Advocate, appeared for the Parent. The DOE did not appear for the conferences. The Parent requested that a hearing date be scheduled and it was scheduled for June 1, 2022. The DOE was notified by several means that the hearing date was scheduled, which is further discussed below.

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)]

JURISDICTION

The due process hearing was held and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.

BACKGROUND

STUDENT was REDACTED years old at the beginning of the 2021-2022 school year. She had previously been classified by the Department of Education (“DOE”), through its Committee on Special Education (“CSE”), as a student with autism.

The Parent sent a letter to the CSE, dated August 25, 2021, providing notice of the Parent’s intention to place STUDENT at the REDACTED School (“REDACTED”) for the 2021-2022 school year, and to seek tuition reimbursement from the DOE, along with other related expenses, including special education transportation. (Exhibit P-B) The Parent stated, in part, that, in addition to the CSE recommending a 15:1:1 class: “The CSE failed to complete necessary evaluations;” “The CSE failed to include sufficient 1:1 and/or small group support in light of the Student’s needs;” “The CSE failed to recommend a specific methodology the Student requires given the nature of their disabilities;” and, “The CSE failed to recognize the Student’s need for extended school year services.”

By letter dated August 30, 2021, the Parent requested an impartial hearing asserting that the DOE failed to offer STUDENT a Free Appropriate Public Education (“FAPE”) for the 2021-2022 school year and included the Parent’s specific claims. (Exhibit P-A) The Parent reiterated the relief being sought.

POSITIONS OF THE PARTIES

THE DOE’S CASE The DOE did not appear to participate in the hearing on June 1, 2022. The DOE had also failed to appear for the scheduled status conferences that preceded the hearing, held on January 31, 2022, and March 31, 2022, despite emails from the undersigned Impartial Hearing Officer (“IHO”) containing the scheduled dates and formal email notices of the conferences from the DOE’s Impartial Hearing Office. On April 13, 2022, the DOE received the written transcript from the status conference held on March 31, 2022, which included the scheduling of the June 1, 2022, hearing date. An email notice from the DOE’s Impartial Hearing Office, sent on May 9, 2022, provided formal notice of the June 1, 2022, date. The DOE did not correspond in any way with the IHO regarding this matter; there were no responses to any communication from the IHO and the DOE never communicated an inability to appear on any scheduled date.

THE PARENT’S CASE The Parent presented the testimony of two witnesses: REDACTED, Assistant Head of the Upper School at REDACTED; and REDACTED, STUDENT’s mother.

REDACTED, Assistant Head of the Upper School at REDACTED, provided her testimony through a sworn, written affidavit. (Exhibit P-L) She described her educational and employment experience, the roles she has had at REDACTED, and her current responsibilities. She described REDACTED as a “not-for-profit inclusive school that focuses on creating individualized programs to meet each student where they are.” REDACTED described STUDENT’s admissions process. STUDENT began attending the school in the 2020-2021 school year as a 10th grader. REDACTED stated that she has known STUDENT well since she started, from observing her in her classes and because she was a student in REDACTED math class. In the 2021-2022 school year, REDACTED was STUDENT’s math teacher, observed STUDENT in her classes, and worked with her one-to-one. “I worked closely with STUDENT’s teachers and therapists to develop and monitor her 2021-2022 school year program, including her goals and objectives, services, supports and accommodations. We work collaboratively as a team to ensure that STUDENT’s program is appropriately addressing her academic, language/communication, and comprehension needs.” REDACTED described the Zenith program, which was the program STUDENT was in for the 2021-2022 school year. In the program, “the instruction is differentiated and based on the learning style, strengths, interests, and needs of the particular student.” “Students in the Zenith program are taught in small class sizes, with a low student-teacher ratio.”

REDACTED explained that during the 2021-2022 school year, STUDENT’s class sizes were small, with ten to twelve students. She requires “intense 1:1 teacher instruction and support to address her deficits. She is unable to access grade level material but can understand and make connections to grade level content with 1:1 support and small group instruction.” REDACTED described the methods and strategies used by the classroom teachers to support STUDENT, which can include, for example, frequent verbal prompts, visual supports, scaffolding, chunking of information, manipulatives for math, and teacher check-ins. These are all provided on a one-to-one basis. STUDENT’s distractibility also requires frequent one-to-one assistance. STUDENT’s needs related to comprehension, understanding, inferencing, and processing require support in academic and social situations. She struggles with oral instructions. With reading, her difficulties with comprehension, answering inferential and critical questions, explaining what she has read, and making predictions and connections, require support. STUDENT also requires small group and individualized one-to-one instruction with structure and organization in writing; and, computation, understanding abstract concepts and applying the skills learned, and solving word problems in math.

REDACTED testified that, “Because of STUDENT’s significant needs, she requires access to both an integrated class and also 1:1 instruction and supports a small group instruction [sic] in order to access grade level concepts and make meaningful progress. She also requires and receives speech and language therapy, occupational therapy, and counseling to address these needs. Without this type of educational program and accommodations she would not be making progress.” REDACTED added that STUDENT’s progress reports and therapy reports show that she made meaningful progress during the 2021-2022 school year. (Exhibits P-H, P-I, P-J, P-K) REDACTED described examples of the progress made by STUDENT in all areas.

REDACTED stated that all of STUDENT’s teachers and therapist agree that “given her areas of need, she continues to require 1:1 instruction and support in a small class size program and to be grouped in classes with both typically developing peers and based on her readiness level. STUDENT continues to require instructional support of her teachers, and related services at the current level in order to make educational progress and to be available for learning.” She added that “STUDENT has thrived at REDACTED and there is no doubt in my mind that REDACTED is appropriate for addressing STUDENT’s needs.”

REDACTED, STUDENT’s mother, provided her testimony through a sworn, written affidavit. (Exhibit P-L) The following are portions of her testimony:

• • STUDENT began attending REDACTED at the 10-month start of the 2020-2021 academic school year.
• • STUDENT is a very social and talkative young lady who struggles significantly with academics, attention and organization. She has consistently required small classrooms and direct instruction in order to attend to instruction and make progress.
• • STUDENT has received special education services from the New York City Department of Education for several years. STUDENT previously attended a District 75 program, however she did not make progress in this setting and struggled to find appropriate peer models.
• • Over the years, I repeatedly voiced concerns about STUDENT’s lack of progress in the DOE programs. I spoke to her teachers as well as other administrators within the school.
• • After the 2019-2020 school year, and particularly in light of COVID-19, I began looking for more appropriate placements for STUDENT.
• • When I found REDACTED and had a chance to tour the program, I felt this was an appropriate placement for STUDENT has more access to a small classroom with a collaborative and individualized approach between her team. She has ample opportunities to remediate her skills while being exposed to general education peers.
• • My attorney advised the DOE that we did not agree with its plan for STUDENT for the 2021-2022 school year and that in the absence of an offer of a free appropriate public education, I would be placing STUDENT at The REDACTED School of Manhattan as well as seeking funding for her placement.
• • Even though my attorney sent the letter, the DOE still has not responded to my request for a CSE meeting.
• • Currently STUDENT is meeting expectations and thriving at REDACTED. She is a more confident student; her organizational skills are improving, and her academics are expanding with the right level of support.
• • We live in the Bronx and are over an hour from REDACTED, therefore I am asking the hearing officer to also order appropriate round trip transportation to and from school for STUDENT.
• • I have had the opportunity to review her progress reports as well as discuss her progress with her team at REDACTED. I am in agreement with these reports to the best of my knowledge.
• • Given my limited financial resources, I am seeking direct funding to REDACTED for the balance due and reimbursement for the amount I have paid to date. It would be an incredible hardship fronting additional expenses for my daughter’s education if I had to pay the tuition and wait for reimbursement.

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 try to establish that it offered a FAPE to STUDENT for the 2021-2022 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 she has 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, a parent 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 has been directly involved with STUDENT’s educational program, as her teacher and as Assistant Head of the Upper School. She has direct personal knowledge of STUDENT’s strengths, weaknesses, academic program, and the instructional and special education methods and strategies used to meet her needs. She is also familiar with the progress STUDENT made in the 2021-2022 school year while at REDACTED. REDACTED provided testimony conveying the struggles STUDENT experienced while she was in a public-school program and the ways in which the REDACTED program was tailored to her unique needs, including its small class size and the level of individualized instruction and support provided. She also described the progress STUDENT made in all areas. REDACTED and REDACTED persuasively expressed that REDACTED was appropriate for STUDENT for the 2021-2022 school year. They provided supporting evidence affirming the appropriateness of the placement and demonstrating that REDACTED addressed STUDENT’s individual needs. They established that her placement was reasonably calculated to allow her to make meaningful progress. In fact, she made meaningful progress through her attendance at REDACTED in the 2021-2022 school year as documented in the school’s progress reports and therapy reports. (Exhibits P-H, P-I, P- J, P-K)

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 that could adversely affect the Parent’s case. 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

Based upon the above Findings of Fact and Conclusions of Law, it is hereby ordered that:

• • The DOE failed to offer a FAPE to STUDENT for the 2021-2022 school year;
• • The Parent’s unilateral placement of STUDENT at REDACTED was appropriate for the 2021-2022 school year;
• • There are no equitable considerations which would reduce or bar an award for the 2021-2022 school year; and, therefore,
• • The DOE shall reimburse the Parent for the tuition paid to REDACTED for the 2021-2022 school year in the amount of $914.30. Payment shall be made immediately, since the Parent has already submitted proof of payment; (Exhibits P-F)
• • The DOE shall pay the balance of the tuition owed for the 2021-2022 school year directly to REDACTED in the amount of $82,685.70. Payment shall be made immediately, since the Parent has already submitted proof of the cost of tuition, proof of the amount she paid, and proof of the balance owed; and, (Exhibits P-C and P-F)
• • To the extent that the DOE failed to provide STUDENT with roundtrip transportation between her home and REDACTED for the 2021-2022 school year, the DOE shall reimburse the Parent for any costs associated with transportation upon the Parent’s submission of proof of payment to the DOE.4

SO ORDERED.

DATED: November 4, 2022 Amy Lynne Itzla, Esq. Amy Lynne Itzla Esq. Impartial Hearing Officer

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.

2 Exhibits shall be referred to as follows: “P” for Parent’s Exhibit; “D” for District’s or Department’s Exhibits; and “IHO” for Impartial Hearing Officer’s Exhibits. Exhibits will be followed by the exhibit number and page numbers as needed and appropriate. In this case, there are only Parent’s exhibits.

3 A more detailed list of the admitted exhibits is attached as Appendix B, “Documentation Entered Into the Record,” to this decision.

4 Although transportation was requested in the DPC, in the Parent’s affidavit, and in the list of items being sought by the Parent during the hearing, there was no evidence presented to establish that the DOE failed to provide transportation, or that the Parent funded redacted transportation. If the DOE failed to provide transportation, and the Parent bore the costs associated with transportation, the DOE shall reimburse the Parent for those costs upon submission of proof of payment.