New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 561909 - NYC: 217776

FINDINGS OF FACT AND DECISION

Case Number: 217776

Student’s Name^[1] [REDACTED] (“Student”)

Date of Birth: [REDACTED]

School District: [REDACTED]

Hearing Requested by: [REDACTED] (“Parent”)

Request Date/Date Complaint Filed: September 15, 2021

Date(s) of Hearing: November 22, 2022

Actual Record Closed Date: December 9, 2022

Date of Decision: December 23, 2022

Hearing Officer: Lisa S. Rusk, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 22, 2022

For the Student:

[REDACTED], Attorney

[REDACTED], Parent

[REDACTED], Program Director, [REDACTED]

For the Department of Education:

[REDACTED], District Representative

INTRODUCTION AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) by the Parent’s Due Process Complaint (“DPC") dated September 15, 2021(Ex. P-A)^[2]. This IHO was appointed on October 17, 2022. The prior IHO passed away unexpectedly in October of 2022. The prior IHO was appointed in February of 2022 and held conferences on April 7, 2022, May 20, 2022, June 28, 2022, July 27, 2022, August 29, 2022 and September 27, 2022. Following appointment, this IHO held a prehearing conference on October 24, 2022. At the prehearing conference, the District advised that the case still remained under investigation by the District, and a hearing date was scheduled for November 22, 2022.

The DPC alleges the District failed to provide a Free Appropriate Public Education (FAPE) to the Student for the 2020-21 school year and seeks tuition reimbursement for the Parent’s unilateral placement of the Student at [REDACTED] (hereinafter referred to as “the private school”). There is no record of a response to the DPC by the District.

The hearing commenced on November 22, 2022. [REDACTED] represented the Parent, and [REDACTED] appeared on behalf of the District. District Exhibits 1-3 were admitted into evidence. Parent Exhibits A-M and O-P were entered into evidence, including the affidavits of Program Director [REDACTED] and Educational Coordinator [REDACTED]. The Parent also testified at the hearing. The District did not present any witnesses.

The record was closed on December 9, 2022.

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

The Student is a [REDACTED] year old female who was unilaterally placed at the private school by the Parent for the 2020-21 school year, her second grade year. The Student is classified by the District’s Committee on Special Education (“CSE”) as a student with a speech or language impairment^[3]. The DPC alleges that the 2020-21 school year Individualized Education Program (“IEP”) developed by the CSE at a meeting on April 30, 2020^[4] failed to offer the Student a free and appropriate public education (“FAPE”).

ISSUES

The Parent alleges in the DPC that the District’s 2020-21 IEP is both procedurally and substantively defective (Ex. P-A). Procedurally, the Parent alleges that the CSE was improperly constituted and failed to consider appropriate evaluative data. The allegations include a failure to conduct and review a current psychological evaluation.

The Parent alleges that the Student requires a smaller class ratio, the goals are inappropriate and insufficient and fail to address all areas of disability. The management needs are not sufficient and lacks specially designed instruction, modifications and accommodations. The IEP does not address her medical diagnosis of [REDACTED] or her transportation needs.

The Parent alleges she was prevented from acquiring timely and relevant information regarding the proposed placement at [REDACTED]. The proposed placement could not implement the IEP.

The Parent alleges that [REDACTED] is an appropriate program. Instruction is tailored to her needs and is enabling her to make progress. It provides a small class with mainstreaming opportunities.

Finally, the Parent alleges that she fully cooperated with the CSE, and the equities support the Parent. The Parent attended the annual review meeting and provided the District with timely notice of her dissatisfaction with the CSE’s recommendations.

The District conceded its burden under Prong I of the Burlington/Carter test^[5] (T:54-55). The District stated that the Parent’s placement was too restrictive in that it was too small and did not have enough mainstreaming, and there was a concern regarding the religious aspect of the placement^[6] (T:54;94).

FINDINGS OF FACT

The Parent described the Student as a fun-loving, creative, funny little girl who likes drawing and animals and loves positive attention (T:74). She also is impulsive and has physical challenges, language delays, articulation issues and executive functioning deficits. She struggles in a group and requires one-on-one direction to stay focused and on task (T:74). She has attended the private school since kindergarten.

The Parent testified that she attended the Student’s annual review meeting to develop the 2020-21 IEP and told the CSE she disagreed with the recommendation for a 12:1:1 class. The representatives from the private school also had concerns regarding the recommendation and the class size ratio (T:76-77). She reached out to the recommended public-school placement, but the administrator did not have information regarding the class and told her to call back in September (T:77-78). She sent a letter to the District on or about July 28, 2020 outlining her concerns (Ex. P-B). In September, she was advised by the public school that the program would be at least partially remote. The Parent testified that this would not be appropriate for the Student given her distractibility (T:78-79).

The Parent testified that she signed a contract with the private school on July 25, 2020 (T:80; Ex. P-C). The contract permitted the Student to withdraw without financial penalty up until September 30 (T:88). The Parent paid $6,000 toward the total tuition of $53,655. The Parent testified that she could not afford to pay the balance (T:81-82). The parents’ joint 2019 tax return is in evidence as Exhibit P-H.

The Parent testified that the private placement was appropriate^[7] and that the Student made progress. She advanced in reading and math and was able to receive some mainstreaming (T:88-89). The Student received all of her related services through the private school and also required door-to-door transportation as a result of her diagnosed neuromuscular disorder (T:88-89, 92). The Parent, however, did not expend funds for transporting the Student (T:91).

Program Director [REDACTED] testified that she is permanently certified as a special education teacher K-12, school administrator supervisor and school district administrator and has been employed by the private school in various positions for over 29 years (Ex. P-O-1). The private school program consists of self-contained classes for students with learning disabilities, language-based disabilities and/or attention deficit disorder. The private school is housed in a mainstream religious day school, so the students have opportunities to be mainstreamed with regular education peers for recess, lunch, art, computers and special events (T:66, 72). The Student attended the 1st-2nd grade classroom during the 2020-21 school year with 10 children, one teacher and two assistants (Ex. P-O-1). Two teachers shared the classroom teacher assignment, and both hold NYS certifications in general education and special education.

The Student received speech language therapy 2 x 30, 1:1 and 1 x 30, 2:1, occupational therapy 1 x 30, 1:1 and 1 x 30, 2:1 and physical therapy 2 x 30 1:1 from licensed/certified providers. She also received a social skills class one time per week led by a school psychologist.

The Student spent 13% of her school week in prayer, bible and Jewish customs. Hebrew language was taught in a secular nature for 18% of the school week (Ex. P-O-2).

Educational Coordinator [REDACTED] testified that she holds a NYS certification as a general education teacher K-12, is licensed in reading and has held this position for 26 years (Ex. P-P-1). She is familiar with the Student, and testified that her academic needs included math, reading comprehension, ELA and handwriting (Ex. P-P-2). The Student presented with both receptive and expressive language delays. Her language needs were addressed in therapy, as well as through supports in the classroom, in a specific, targeted way to meet her needs (Ex. P-P-3).

Occupational therapy addressed her fine motor, visual perceptual, sensory processing and motor planning difficulties, and she was provided with direct instruction in improving her handwriting. The physical therapist targeted her decreased muscle strength, decreased balance and coordination and decreased endurance (Ex. P-P-4).

The Educational Coordinator testified in detail as to how the Student’s academic needs in reading, math and written language were addressed and the type of progress she made during the 2020-21 school year with teacher support. For example, her Fountas and Pinnell reading level went from an H to an L by the end of the year (Ex. P-P-5-8). Her testimony was supported by the progress reports in evidence (see Exs. P-J, K, L and M). The District did not cross-examine the Educational Coordinator (T:73).

CONCLUSIONS OF LAW

The Individuals with Disabilities Education Act (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 comprehensive written IEP (34 C.F.R. § 300.13). 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 reasonably calculated to enable the student to receive educational benefits Bd. 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). If a procedural violation has occurred, relief is warranted only if the procedural violation affected the student's right to a FAPE. 8 NYCRR §200.5[4]; J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 (2d Cir. 2000).

In New York State, 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 or payment for services 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)). (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School Dist. Four v. Carter, 510 US 7 [1993]).

In order to meet their burden, the Parent must establish, by a preponderance of the evidence, that the unilateral placement provided “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]. However, the private school placement “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements” (Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d. Cr. 2006]. 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.

The standard to apply is whether "[the] unilateral private placement... provides educational instruction specifically designed to meet the unique needs of a handicapped child" Gagliardo, 489 F.3d at 115):

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).

Finally, equitable factors must weigh in the favor of the parent in order to qualify for an award of tuition reimbursement.

Where parents “lack the financial resources to ‘front’ the costs of private school tuition, and in the rare instances where 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 Burlington factors have a right to retroactive direct tuition payment relief” (Mr. and Mrs. A. v. New York City Dept. of Educ., 769 F.Supp. 2d 403,428 [SDNY 2011].

ANALYSIS

Based upon the District’s failure to present a case, and a thorough review of the testimony and evidence as outlined above, I find that the District failed to meet its burden that it offered the Student a FAPE for the 2020-21 school year. If the District has not done so already, it shall conduct an updated psychological evaluation of the Student. Since the District in this case has failed to demonstrate it offered the Student a FAPE under the First Prong of the Burlington/Carter test, the burden shifts to the Parent to prove that the services provided by the private school are appropriate to meet the Student’s special education needs and that the equities weigh in the Parent’s favor.

The Parent has met her burden of demonstrating that the private school provided the Student with specific instruction to address her special education and related services needs while enabling her to make meaningful educational progress commensurate with her academic, language and physical disabilities as identified by the private school. Although there was no evidence of District evaluative material entered into the record^[8], the testimony and exhibits provided by the Parent set forth evidence of the provision of specific instruction by the private school to meet the Student’s needs, while also providing her access to her non-disabled peers. The uncontroverted testimony was that she made progress in an individualized and supportive private school program.

Turning to the equities, the District did not present any evidence that the Parent acted unreasonably or in an uncooperative manner. The record evidence indicates that the equities weigh in the favor of the Parent, and the Parent is entitled to the funding of tuition and related services for the 2020-21 school year. I find, however, that the tuition of $42,000 should be reduced by 13%, which is attributable to religious instruction. The Parent is entitled to reimbursement for the $6,000 paid to the private school, and the District shall pay the private school directly $42,195.

ORDER

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

• • ORDERED that the District shall reimburse the Parent for tuition paid to the private school for the 2020-21 school year in the amount of six thousand dollars ($6,000) within thirty (30) days of the date of this decision; and
• • IT IS ORDERED FURTHER that the District shall pay directly to the private school forty-two thousand one hundred ninety five dollars ($42,195) for tuition and related services within thirty (30) days of the date of this decision; and
• • IT IS ORDERED FURTHER that the District shall conduct an updated psychological evaluation of the Student, if it has not done so already, within thirty (30) days of the date of this decision.

SO ORDERED.

DATED: December 23, 2022

Lisa S. Rusk

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.

APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD

DISTRICT EXHIBITS:

EXHIBIT DATE TITLE #OF PAGES

1 4/30/20 IEP 31

2 6/03/20 PRIOR WRITTEN NOTICE 6

3 4/30/20 SCHOOL INFORMATION FORM 2

PARENT EXHIBITS:

Exhibit

Date

Title

# of Pages

A 09-15-2021 Impartial Hearing Request with Receipt 05

B 07-28-2020 Ten Day Notice Letter 05

C 07-25-2020 Enrollment Contract 02

D 09-17-2020 Related Services Contract 01

E Undated Class Schedule 02

G 06-18-2021 2020-2021 Attendance Record 01

H 02-24-2022 Tuition Affidavit 02

I 04-11-2020 Parent Tax Documents (2019) 02

J Various Dates Parent Proof of Payment 10

K 03-11-2021 Teacher Report 04

L 03-08-2021 Speech- Language Therapy Progress Report 01

M 03-02-2021 Physical Therapy Progress Report 02

N 03-01-2021 Occupational Therapy Progress Report 02 Testimony By Affidavit Exhibit

Date

Name

# of Pages

O

11-19-2022

[REDACTED]

03

P

11-21-2022

[REDACTED]

08

Footnotes

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

[2] Exhibits shall be referred to as follows: “P” for Parents’ 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.

[3] Her classification is not in dispute (T:60).

[4] District Exhibit 1.

[5] (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School Dist. Four v. Carter, 510 US 7 [1993]).

[6] The Parent clarified that she is not seeking funding for the religious aspect of the program which the Parent asserts is 13% of the program (T:58-59, 60-61).

[7] Transcript reads “inappropriate” at page 88 but should read “an appropriate”.

[8] Responsibility for such deficiency lies with the District (see Application of a Student with a Disability, Appeal No. 21-194 at pg. 17).