New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 559738 - NYC: 215732

FINDINGS OF FACT AND DECISION

Case Number: 215732

Student's Name: REDACTED

School District: REDACTED

Scho Hearing Requested By: Parent

Dates of Hearing: June 6, 2022

Record Closed Date: June 30, 2022

Hearing Officer: Dora M. Lassinger The student’s parent filed a request for an impartial hearing on September 9, 2021 challenging the student’s educational program for the 2021-2022 school year, and requesting funding for the parent’s unilateral placement of the student at REDACTED (hereinafter “the private school”) as well as funding for costs and fees for appropriate related and support services, during the 2021-2022 school year. (Par. Ex. A). ^[1] I was designated to hear this matter on January 27, 2022, pursuant to 20 U.S.C. Section 1415(f)(1).

A pre-hearing telephone conference was held on February 4, 2022. A hearing on the merits was held on June 6, 2022. The compliance date was extended on two occasions, with a final compliance date of July 11, 2022. (IHO Ex. I).

Department of Education (“DOE”) Position The DOE did not present any evidence or argument at the hearing.(Tr. pp. 22, 63).

Evidence at Hearing The student began attending the private school, as a REDACTED grader (in the high school division), during the 2020/2021 school year. (Tr. p. 22, 30).

She received Early Intervention and preschool services; however services were discontinued by her first grade year. She resumed receiving services during Middle School. (Tr. p. 49). During Middle School, she refused to attend school, and was placed in a partial redacted program. She then returned to school. (Tr. p. 50).

An IEP meeting was held at the end of the student’s REDACTED grade year. She was recommended for a state approved non-public school for her REDACTED grade year; however no such school was identified by the DOE. (Tr. p. 60).

She began her REDACTED grade year at a public high school. Afterward, she began attending the private school in November 2020. The transition was difficult, because she was learning remotely; however her performance improved during the second semester, when she attended in person. (Tr. p. 61 )

Another IEP meeting was held on July 29, 2021, during the summer preceding the student’s REDACTD grade year. (Tr. pp. 51, 61).The CSE recommended a program; however the parent never received a placement offer from the DOE. (Tr. pp. 52, 62).

On June 30, 2021, the parent signed a contract with the private school agreeing to pay tuition in the amount of $84,562.50 for the 2021-2022 school year, including the Jump Start program, plus other fees. (Par. Ex. F, I). The parent was charged an additional $2029.50 for tuition insurance (which was optional), and a mandatory bookstore deposit of $1,200 for a total cost of $87,792. (Par. Ex. I). Proof of payment was also provided. (Par. Ex. J, K).

The parent opted for tuition insurance, due to the student’s history of school refusal.(Tr. p. 65).

On August 25, 2021, the parent, by counsel, wrote to the CSE stating that no IEP had been received and no public school placement offered for the student, for the 2021-2022 school years; and notifying the CSE that the parents would be unilaterally placing the student at the private school program and seeking funding. (Par. Ex. C).

The parent testified that the student progressed. Her grades improved and she is excited to go to school. She has been studying at home and at school. (Tr. p 57).

An independent neuropsychological evaluation of the student was performed in August 2019. It was noted that the student had a history of social/emotional and academic difficulties, resulting in school refusal for a portion of the previous academic year. It was further noted that she had received treatment at a clinic and returned to public school in September; but that she was unable to maintain consistent school attendance, and that she recently required hospitalization.

Testing data indicated variable academic skills. The student’s reading skills were well developed; however her math skills were well below expectations. Her writing skills were also poor. She demonstrated weakness in her executive functioning skills. She was diagnosed with Disruptive Mood Dysregulation Disorder, Depression and Attention Deficit Hyperactivity Disorder (“ADHD”). It was recommended that she be classified with Emotional Disturbance and placed in full-time therapeutic residential school, with individual counseling and continued medication management with a psychiatrist. Additional recommendations included a supportive and encouraging academic environment, reduction of extraneous visual and auditory stimuli, previewing of materials, frequent practice and review of new concepts. (Par Ex. N).

Updated testing was performed in August 2020, when the student was entering REDACTED grade. The student’s score on cognitive testing was in the Average range overall, with relative strength in verbal reasoning skills and weakness in visual spatial tasks. It was recommended that she be placed in a small, structured and supportive class and school environment with access to challenging academic curriculum, typical peers, small class size and daily direct and/or small group instruction from trained special educators. (Par Ex. O).

The director of the REDACTED program (hereinafter “the Support program”) at the private school testified that she has a Master’s Degree in Literacy and is certified to teach special education and literacy. (Tr. pp. 20, 46).

The private school is an inclusive mainstream school for students in grades 6-12, with a tracking system, based upon student’s abilities in each academic subject. Students are also grouped in accordance with their grade level. (Tr. pp. 21-22). The school has approximately. 340 students. In the high school, classes have an average of 15 students per class. (Tr. p. 27).

The Support Program is a learning support program that helps students with learning differences access the curriculum. (Tr. p. 27). The private school offers accommodations. There are approximately 200 students in the Support program. (Tr. p. 28). Teachers in the support program all have a master’s degree in special education or a remedial specialty. The average size of the Support Program groups is ten. (Tr. p. 29). The director of the Support Program works with classroom teachers, providing strategies and modifications which can be implemented in the classroom. (Tr. p. 30).

The students meet in their support group sessions before school and after school. Morning sessions, which occur between 8:00 and 8:35 A.M., are focused on organization and preparing for the day. The afternoon session (from 3:15 P,M. to 4:00 PM) is a structured study hall time, with support for prioritizing assignments and assistance with more challenging assignments. (Tr. p. 31 ). Students receive two individual sessions each week, for 40 minutes, tailored to the needs of the student. (Tr. p. 32). The student was enrolled in the Support Program during the 2021/2022 school year and benefited from it. (Tr. p. 33). During the 2021/2022 school year, the student’s support program teacher was a licensed clinical social worker who is certified in Special Education. (Tr. pp. 33-34).

The student has weaknesses in executive functioning, math and writing. She also struggles with inattention and impulsivity. (Tr. p. 35).

For English, Math and History, the student’s classes had six students. For science, there were five students in the class (Tr. p. 36). She was grouped with other students at her grade level level. (Tr. p. 37).

The student’s English teacher is licensed to teach English. Her Geometry teacher is a licensed special education teacher. Her History teacher has a Master’s Degree in teaching Social Studies, 7-12. Her Chemistry Teacher has a Master’s Degree in teaching special education. (Tr. pp. 37-40, 47). The student receives counseling services weekly, and as needed, from a licensed social worker. (Tr. p. 41)

The Director testified that private school program incorporated the accommodations and recommendations made in the neuropsychological evaluation and met the student’s needs (Tr. pp. 43; 45)

The student’s Report Card indicates that she received passing grades in all subjects, with an average grade of 78. (Par. Ex. E).

Findings of Fact, Conclusions of Law and Order The school district bears the burden of proving the appropriateness of the recommended program. Education Law 4404(1). The school district must comply with the procedural requirements of the Individual with Disabilities Education Act. (IDEA), and the IEP developed through its CSE must be reasonably calculated to enable the student to receive meaningful educational benefits. (Board of Educ. v. Rowley, 458 U.S. 176, 192 [1982]. The instruction offered must be specially designed to meet the child’s unique needs through an individualized education program. Endrew F. v. Douglas County School District, 137 S. Ct. 988 (2017). The IEP must be reasonably calculated to enable the child to make progress appropriate in light of the student’s circumstances. Id. at 1002.

The DOE failed to meet its burden of proving the appropriateness of its recommendations for the 2021/2022 School year. The DOE did not present any evidence or argument at the hearing. The parent’s testimony that the DOE did not make a placement offer for the 2021/2022 school year was not challenged or rebutted.

Appropriateness of Parental Placement; Reimbursement To qualify for funding under the IDEA, the parents must demonstrate that the parental 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.” See Frank G. v. Bd. Of Educ. Of Hyde Park, 459 F. 3d 356, 365 (2d Cir. 2006) (citing Rowley). cert. denied, Board of Educ. Of Hyde Par, v. Frank G. 128 S. Ct. 436 (2007).

The record indicates that the educational program provided at the private school, combined with the Support Program, was consistent with the recommendations of the independent neuropsychological evaluation, and was specially designed to meet the student’s unique needs. The program provided the student with small classes, individual support, and two periods per day for assistance with organization and support in content areas. She also received counseling. The student participated in the program and progressed academically.

For all of the foregoing reasons, I find that the parental placement was appropriate.

I also note that pursuant to the pendency agreement, the DOE was required to reimburse the parent for her tuition expenses at the private school, for the entire school year.

Equitable Considerations In determining whether equitable considerations support a request for reimbursement, the courts will consider whether the parents have cooperated with the school district throughout the process to ensure that their child receives a FAPE. Bettinger v. New York City Bd. of Educ., 49 IDELR 39 [S.D.N.Y. Nov. 20, 2007]. The Courts must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Florence County School District Four, et al v. Carter 510 U.S. 7 (1993); M.C. v. Voluntown, 226 F. 3d 60 (2d Cir. 2000).

The record indicates that the parents provided notice of their disagreement with the proposed program; and their intention to unilaterally place the student and seek funding. In addition, the parent testified that the DOE failed to offer the student a placement. Therefore, equitable considerations support the parent’s request for tuition funding.

I find that the parent is entitled to be reimbursed for her tuition expenses ($84,562.50) the bookstore deposit ($1,200) and tuition refund insurance ($2,029.50), as provided in the contract. I find that it was reasonable for the parent to incur the cost of tuition insurance, due to the student’s history of school refusal. ^[2]

ORDER

For all of the foregoing reasons, it is hereby ordered that the DOE shall, within 15 days of this decision, reimburse the parent $87,792. on account of the student’s tuition, tuition insurance and bookstore deposit at the private school, for the 2021-2022 school year.

Dated: July 11, 2022 Dora M. Lassinger

DORA M. LASSINGER, ESQ.

Impartial Hearing Officer

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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 Office (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.

DOCUMENTATION ENTERED INTO THE RECORD

Impartial Hearing Officer Exhibits

I. Orders of Extension, various dates 3 pp.

II. Parents’ post hearing submission, 6-20-22, 2pp.

PARENT’S EVIDENCE

REDACTED

Footnotes

[1] At the hearing, parent’s counsel stated that all related services and support fees are included in the student’s tuition. (Tr. p. 25).On November 19, 2021, the DOE agreed to fund the student’s tuition at the private school, effective September 9, 2021, until such time a final decision is issued or settlement reached, by reimbursing the parent for tuition. based upon an unappealed decision in Case #203307, dated November 3, 2021. (Par. Ex. L). Parent’s counsel represented that the DOE has not made payment of tuition pursuant to the pendency agreement. (Tr. p. 17).

[2] In her closing submission, the parent requests reimbursement of $614.40 for funds paid at the bookstore, in addition to the mandatory bookstore deposit of $1,200. (IHO Ex. I). I decline to award this additional amount, as the tuition contract indicates that students could also purchase items at the bookstore such as athletic clothing and school supplies, which the school district is not required to fund; and there is no explanation in the record for why the student incurred a total $1,814.40 in expenses at the bookstore. (Par. I); See Application of Student with a Disability, Appeal No 14-033.