Skip to main content
Special Education Law
DECISIONParent PrevailedIHO Case No. 219229

New York City Department of Education, Impartial Hearing Decision

April 27, 2022·Martin J. Kehoe III·New York City Department of Education

NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.

CASE NUMBER: 563514 - NYC: 219229

FINDINGS OF FACT AND DECISION

Case Number: 219229

Student’s Name: [Redacted]

District: REDACTED

Hearing Requested By: Parents

Hearing Officer: Martin J. Kehoe III, Esq.

Actual Record Close Date: April 27, 2022

Table of Contents

I. Introduction 3

II. Overview 3

A. Parents’ Position 4 b. District’s Position 4 c. Background of the Case 5 d. Student History 5 e. Legal Background 6

III. Prong I 8 a. Did the District Present a Prima Facie Case? 8 i. Standard 8 ii. Analysis 8 iii. Conclusion 9

IV. Prong II 10 a. Legal Issue: Did the Parent Establish the Appropriateness of the Private School? 10 i. Legal Standard 10 ii. Analysis 10 iii. Conclusion 12

V. Prong III 12 a. Legal Issue: Did the Parent Cooperate with the District? 12 i. Legal Standard 12 ii. Analysis 13 iii. Conclusion 13

I. Introduction

This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (IHO) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the New York State Education Laws. The School District will be referred to as District, the parent(s) as Parent(s) and the student will be referred to as Student.

II. Overview

This is a “reimbursement” case for the 2021-2022 school year (SY).[1] A board of education may be required to reimburse parents for their expenditures for private education services obtained for a student by his or her 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. Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); Sch. Comm. Of Burlington v. Dep’t. of Educ., 471 U.S. 359, 369-70 (1985). The analytical framework for deciding a reimbursement case is typically called a three-prong analysis.

The Parents filed a complaint notice on October 11, 2021. (Ex. A-1) I was appointed as the Impartial Hearing Officer (IHO) on October 13, 2021. The Parties came together at a hearing and the Parent introduced exhibits A-L into the record on April 6, 2022. The Parent called several witnesses to testify including the Private School Senior Accountant, the Speech Language Pathologist, the Private School Teacher, and the Parent. The District did not call any witnesses, nor did they submit any evidence.

  • • Parents’ Position In the complaint notice, the Parent alleges that the District failed to provide a free appropriate public education (FAPE) for the 2021-2022 SY and alleges that the District committed numerous procedural and substantive violations in the creation of the Student’s Individualized Educational Program (IEP). (Ex. A) As a result, the Parents are seeking tuition reimbursement and transportation fees for the 2021-2022 SY. (Ex. A-2; A-3)

b. District’s Position The District did not put on a Prong I case, did not submit any exhibits and called no witnesses for the case. c. Background of the Case The Student has been enrolled at the Private School since the 2016-2017 SY. (Ex.s A, G) On February 25, 2021, the Parent signed an agreement to re-enroll the Student at the Private School for the 2021-2022 SY (Ex. C). The CSE convened in October 2021 (Ex. L)[2] after the start of the 2021-2022 SY to develop a program for the Student where they recommended that he be placed in a 12:1 class classroom with Speech Therapy. The District’s recommendation did not include specialized services the Student was receiving at the Private School, including a specialized language based program, specialized reading instruction or individual remediation. (Ex. I-2)

On August 25, 2021, the Parent sent the District a ten-day notice to notify them of her intent to re-enroll the Student at the Private School for the 2021-2022 SY and that she would be seeking tuition reimbursement. (Ex. B) The Parent served the Complaint Notice on October 11, 2021. (Ex. A) d. Student History The Student is a social child who enjoys playing flag football, meeting his friends at the park, and other athletic activities. (Ex. G-3) The Student is diagnosed with Developmental Coordination Disorder, Language Disorder, Attention Deficit Disorder (ADD), and Specific Learning Disabilities in reading, writing, and math. (Ex. G-9; G-10) The Student also has unilateral hearing loss in his left ear. (Ex. G-3) The Student’s cognitive functioning was assessed using the Wechsler Intelligence Scale for Children-Fifth Edition (WISC-V).[3] (Ex. G-3) The Student’s academic abilities were assessed using the Wechsler Individual Achievement Test-Third Edition (WIAT-III) and the Woodcock Johnson IV Tests of Achievement (WJ-IV).[4] (Ex. G-3, G-4) e. Legal Background The IDEA is a comprehensive statutory framework established by Congress to aid the states in providing disabled children with a free appropriate public education (“FAPE”). 20 U.S.C. § 612(a)(I). “A [FAPE] is available to all children with disabilities residing in the state between the ages of 3 and 21.” 20 U.S.C. § 612(a)(1)(A). The IDEA defines a FAPE as special education and related services that:

(A) have been provided at public expense, under public supervision and direction, and without charge,

(B) meet the standards of the state educational agency,

(C) include an appropriate preschool, elementary, or secondary school education in the state involved, and

(D) are provided in conformity with the individualized education program required under § 614(d) of this title. 20 U.S.C. § 601(9).[5]

A FAPE is crafted through the collaboration of the disabled student’s parents, teachers, and school district administrators and is recorded in an IEP. 20 U.S.C. § 614(d). The “core of the statute … is the cooperative process that [IDEA] establishes between parents and schools.” Schaffer v. Weast, 546 U.S. 49, 53 (2005). The IEP is, in brief, a comprehensive statement of the educational needs of a disabled child and the specially designed instruction and related services to be employed to meet those needs. 20 U.S.C. § 601(14). In New York State, the IEP is produced by a committee on special education (“CSE”), whose members are appointed by the board of education or trustees of the school district. N.Y. Educ. Law § 4402(1)(b)(1) (McKinney Supp. 2005).

The IDEA provides numerous procedural safeguards to protect the due process rights of disabled children and their parents. See generally 20 U.S.C. § 615. These procedures include the opportunity for parents to obtain an IEE of the child (20 U.S.C. § 615(b)(I)) and file a complaint with the state or local educational agency (20 U.S.C. § 615(b)(6)). Any such complaint is resolved through an “impartial due process hearing” in which parents of disabled children have “an opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a [FAPE] to such child.” 20 U.S.C. § 615(b)(6). Parties to an administrative proceeding under the IDEA have the right to written findings of fact and decisions on any complaint about the provision of a FAPE. Polera v. Board of Education Newburgh, 288 F.3d 478, 482 (2nd Cir. 2002).

In New York State, “[t]he board of education or trustees of the school district or the state agency responsible for providing education to students with disabilities shall have the burden of proof, including the burden of persuasion and burden of production, in any such impartial hearing …” N.Y. Educ. Law § 4404 (1)(c), modifying the rule enunciated in Schaffer where “[t]he burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief.” Schaffer, 546 U.S. at 537.

III. Prong I

  • • Did the District Present a Prima Facie Case?

i. Standard

IDEA requires an educational program reasonably calculated to enable a child to make progress appropriately considering the child's circumstances. Endrew F. v. Douglas Co. School Dist. Re-1, 137 S. Ct. 988 (2017). This obligation of the District is accompanied by the requirement to demonstrate the appropriateness of the program recommended by its CSE. (Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed Dept Rep 487 [1983]). To meet its burden, a board of education must be able to “... offer a cogent and responsive explanation for their decisions...” Endrew F., Supra. ii. Analysis The Parent alleges numerous procedural and substantive violations against the District, including the following:

  • • The CSE predetermined the IEP/IESP meeting as a matter of policy as the DOE has prohibited CSEs from recommending approved non-public school absent supervisor permission;
  • • The IEP/IESP teams failed to make decisions based upon the Student's individual needs;
  • • The CSE failed to recommend a specific methodology that the Student requires;
  • • The CSE failed to recommend sufficient 1:1 instruction;
  • • The CSE failed to recommend sufficient small group instruction;
  • • The CSE failed to address the Student's need for remediation;
  • • The IEP/IESPs failed to recommend sufficient Assistive Technology;
  • • The CSE failed to recognize the Student's need for 12 month programming;
  • • The IEP/IESP failed to adequately describe the Student's strengths, weaknesses, and the ways their disabilities impact their ability to make progress in cognitive, developmental, academic, and functional areas at the time when the IEP was created;
  • • The goals of the IEP/IESP are vague, not sufficiently measurable and not individually tailored to meet the Student's needs in the areas of cognition, expressive and receptive language, pragmatic language, and social interaction;
  • • The IEP/IESPs teams were not properly constituted; upon information and belief, the team did not have required members and, if those individuals were present in name/title, they did not possess the required knowledge, training or independence to properly formulate an IEP;
  • • The District failed to meaningfully consider the recommendations contained in the Student's private evaluations;
  • • The students in the recommended class are not functionally grouped and would not be appropriate peers for the Student;
  • • The DOE failed to provide the Parent with any information with regard to planning for instruction during COVID-19, including what type of in person and/or remote instruction, if any, would be available;
  • • The District failed to recommend sufficient social emotional and therapeutic supports;
  • • The District failed to recommend a placement prior to the start of the 2021-2022 school year, including the 12 and 10 month start dates. (Ex. A)

The District did not put forth a case to defend any of these allegations, and the record further establishes that the District did not outwardly attempt to cooperate with the Parents and were apparently unresponsive to all the Parents’ concerns. The District bore the burden of both production and persuasion to establish that it provided the Student with a FAPE as well as all other issues alleged in the DPC. N.Y. Educ. Law §4404(1)(c); See Application of a Student with a Disability, Appeal No. (“SRO No.”) 16-028; 13-200; SRO No. 11-091; SRO No. 11-053; (all holding that, in cases that do not involve a unilateral placement, the burden of proof is on the District). See also L.O. v. New York City Dep't of Educ., No. 15-1019, 2016 WL 2942301 (2d Cir. May 20, 2016).

In this case the District stood silent and I am left to speculate concerning the particulars of the review process, if any and the rationale employed by the CSE members and the deliberations that may or may not have contributed to a final recommendation. What is clear is the August 25, 2021 ten day notice (Ex. B), to which there is no response in the record. I, therefore, rule for the Parents on Prong I. iii. Conclusion

Upon review, I find that the District failed to demonstrate that they met their burden in providing the Student an IEP tailored to meet his individualized needs. I, therefore, rule for the Parents on Prong I.

IV. Prong II

  • • Legal Issue: Did the Parent Establish the Appropriateness of the Private School?

i. Legal Standard

I now consider whether the Parents met their burden of proving the appropriateness of the placement of the Student at the Unilateral Placement. On Prong II, New York federal courts have held that parental placements are “subject to fewer constraints than that applied to the school authorities.” Schreiber v. E. Ramapo Cent. Sch. Dist., 700 F. Supp 529 [S.D.N.Y. 2010] The Second Circuit has clearly stated:

“... [P]arents 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 v. Arlington Cent. Sch. Dist., 489 F.3d 105 [2d Cir. 2007] quoting Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d Cir. 2006]

Moreover, parents "may not be subject to the same mainstreaming requirements as a school board." Frank G. v. Bd. of Ed. of Hyde Park [2d Cir. 2006] quoting M.S. v. Bd. of Ed. of City Sch. Dist. of Yonkers, 231 F.3d 96, 105 [2d Cir. 2000] citing Warren G. v. Cumberland County Sch. Dist., 190 F.3d 80, 84 [3d Cir. 1999] (holding that "the test for the parents' private placement is that it is appropriate, and not that it is perfect").

ii. Analysis

Speech Language Pathologist – Testimony The Speech Language Pathologist testified that her agency specialized in language based literacy disorder, and that her agency primarily worked with children who have “delayed language, receptive/expressive language disorder, dyslexia, disorders of written language, articulation/apraxia and stuttering.” (Ex. J-1) The Speech Language Pathologist also offered a “multisensory instructional reading program for students with language based learning disabilities and dyslexia.... teach[ing] decoding and encoding skills in a structured and systematic way in which advanced skills are built upon previously learned concepts.” (Ex. J-1; J-2)

The Speech Language Pathologist said the Student “struggles with phonological awareness, decoding, spelling and fluency. These weaknesses are amplified due to poor working memory and recall abilities.” (Ex. J-2) The Speech Language Pathologist described the Student’s progress:

[The Student] made progress this year in a number of areas. For instance, he was still working on decoding one syllable words at the beginning of the summer. By the end of the summer he had moved up to reading 2 and 3 syllable words. He also started reading non-decodable text more easily and started to demonstrate reading fluency for more complex texts. (Ex. J-2)

The Speech Language Pathologist also said she believed that the Student required a 12 month program. (Ex. J-2) The Speech Language Pathologist highlighted specific areas in which a 12 month program would help the Student:

[The Student] requires a 12 month program, particularly in his reading instruction in order to maintain progress and prevent regression. Due to weaknesses in recall, Jaxon is in danger of regression and will need to be retaught numerous concepts. With consistent practice, Jaxon has successfully learned concepts and can continue progressing instead of relearning. (Ex. J-2)

Private School Teacher – Testimony The Private School Teacher testified that most of the students at the Private School have language-based or nonverbal learning disabilities, and that many of the students have co-morbid diagnoses in language and attention. The Private School Teacher also said that “the typical ratio of students to adults is 6:1, [and that] the range in small literacy and math groups, and related service groupings for speech, ranges from 3:1 [to] 6:1.” (Ex. K-2) The Private School also has programs that address the social-emotional needs of the students, such as:

…the counseling team leads a class (1/wk during the first trimester)... to explicitly teach about the needs of middle school students. In addition, they lead social lunches (a quiet lunchtime social skills group with topics and conversation guided by a counselor). Finally, the counseling team is available, as needed, for 1:1 sessions with students who need individualized support. (Ex. K-3)

The Private School Teacher described the needs of the Student:

[The Student] lacks many of the foundational language tools and reading, writing, and mathematical skills that allow him to access material beyond the concrete when working independently. He needs help to independently approach text, to read cognitive academic language, and to express himself clearly in writing. In addition, he needs significant teacher guidance with executive functioning tasks, including: planning, shifting, prioritizing, and initiating challenging work. Moreover, [the Student] is both anxious and can have a low frustration tolerance for the arduous effort it takes him to do his best work. [The Student] is willing to work 1:1 with a teacher to clarify information and meet expectations, but without a high level of support, he cannot move beyond the foundational skills he has mastered independently to complete work that matches his level of comprehension and ability. (Ex. K-4; K-5)

At the Private School, the Student received OT once a week; a self-contained speech class 1x60; and worked with a Hearing Education Services provider 2x60. (Ex. K-5) Additionally, a speech pathologist pushes into his content area classes once a week. (Ex. K-5)

The Private School Teacher stated that the Student had made progress in a number of areas: “He demonstrated growth with reading multisyllabic words including advancing word structure. He also gained independence with foundational school tools, such as: graphic organizers and outlines, visual cues, proscribed reading strategies, and math manipulatives. The organization of his writing is progressing to become more clear, complete, and detailed.” (Ex. K-5; K-6) The Private School Teacher said that without “high level of support, modified pacing, and additional language and OT interventions, [the Student] would struggle to make the incremental gains he demonstrated in school this year.” (Ex. K-6) iii. Conclusion

I find that Parents demonstrated that the Private School offers educational instruction specially designed to meet the unique needs of the Student, supported by such services as are necessary to permit the child to benefit from instruction. Accordingly, I rule for the Parents on Prong II.

V. Prong III a. Legal Issue: Did the Parent Cooperate with the District? i. Legal Standard

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 parents where equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). 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 (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "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 offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148[6]). The burden of proof is on the school district during 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 (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at 7 [S.D.N.Y. Aug. 27, 2010]). ii. Analysis The Parent expressed her concerns to the District regarding the Student’s IEP and sent the District a ten-day notice letter informing them of her intent to unilaterally place the Student at the Private School and informed the District that she would seek funding from the District for the Private School. (Ex. B) iii. Conclusion

Upon review of the record, I find that the Parent cooperated with the District and did nothing to impede them from developing an appropriate IEP for the Student. As such, I find no reason for reduction in tuition reimbursement. I, therefore, rule for the Parents in Prong III.

It is therefore ORDERED

  • • 1) Direct funding and/or reimbursement for the 10 month placement at the Private School for the 21-22 school year.
  • • 2) Reimbursement for 12 month service portion of service (specifically from June 15, 2021 through August 31, 2021) with the Speech Pathologist at a market rate to be determined by the implementation unit with input from the Parents.

Dated: April 27, 2022

Martin J. Kehoe III, 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.

Footnotes

[1] A hearing was held for this case on the following dates: December 1, 2021; February 10, 2022; and April 6, 2022.

[2] This is the only District recommendation in this record.

[3] WISC-V results: Verbal Comprehension: SS=100, 50th percentile, Average Visual Spatial: SS=105, 63rd percentile, Average Fluid Reasoning: SS=103, 58th percentile, Average Working Memory: SS=86, 18th percentile, Low Average Processing Speed: SS=75, 5th percentile, Very Low Full Scale IQ: SS=88, 21st percentile, Low Average

[4] WIAT-III results: Sentence Composition: SS=88, 21st percentile Sentence Building: SS=80, 9th percentile Sentence Combining: SS=99, 47th percentile Essay Composition: SS=92, 30th percentile WJ-IV results: Letter-Word Identification: SS=60,.4th percentile Sentence Reading Fluence: SS=53, <.1st percentile Calculation: SS=82, 11th percentile Math Facts Fluency: SS=87, 20th percentile Applied Problems: SS=106, 67th percentile Spelling: SS=74, 4th percentile Word Attack: SS=69, 2nd percentile

[5] “Special education” is defined by the IDEA as specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a child with a disability, including (A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and (B) instruction in physical education. The term “related services” is defined as transportation, and such developmental, corrective, and other supportive services (including speech pathology and audiology, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, counseling services, including rehabilitation counseling, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children. 20 U.S.C. § 601(26).

[6] § 300.148 Placement of children by parents when FAPE is at issue. (a) General. This part does not require an LEA to pay for the cost of education, including special education and related services, of a child with a disability at a private school or facility if that agency made FAPE available to the child and the parents elected to place the child in a private school or facility. However, the public agency must include that child in the population whose needs are addressed consistent with §§ 300.131 through 300.144. (b) Disagreements about FAPE. Disagreements between the parents and a public agency regarding the availability of a program appropriate for the child, and the question of financial reimbursement, are subject to the due process procedures in §§ 300.504 through 300.520. (c) Reimbursement for private school placement. If the parents of a child with a disability, who previously received special education and related services under the authority of a public agency, enroll the child in a private preschool, elementary school, or secondary school without the consent of or referral by the public agency, a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if the court or hearing officer finds that the agency had not made FAPE available to the child in a timely manner prior to that enrollment and that the private placement is appropriate. A parental placement may be found to be appropriate by a hearing officer or a court even if it does not meet the State standards that apply to education provided by the SEA and LEAs. (d) Limitation on reimbursement. The cost of reimbursement described in paragraph (c) of this section may be reduced or denied (1) If - (i) At the most recent IEP Team meeting that the parents attended prior to removal of the child from the public school, the parents did not inform the IEP Team that they were rejecting the placement proposed by the public agency to provide FAPE to their child, including stating their concerns and their intent to enroll their child in a private school at public expense; or (ii) At least ten (10) business days (including any holidays that occur on a business day) prior to the removal of the child from the public school, the parents did not give written notice to the public agency of the information described in paragraph (d)(1)(i) of this section; (2) If, prior to the parents' removal of the child from the public school, the public agency informed the parents, through the notice requirements described in § 300.503(a)(1), of its intent to evaluate the child (including a statement of the purpose of the evaluation that was appropriate and reasonable), but the parents did not make the child available for the evaluation; or (3) Upon a judicial finding of unreasonableness with respect to actions taken by the parents. (e) Exception. Notwithstanding the notice requirement in paragraph (d)(1) of this section, the cost of reimbursement - (1) Must not be reduced or denied for failure to provide the notice if - (i) The school prevented the parents from providing the notice; (ii) The parents had not received notice, pursuant to § 300.504, of the notice requirement in paragraph (d)(1) of this section; or (iii) Compliance with paragraph (d)(1) of this section would likely result in physical harm to the child; and (2) May, in the discretion of the court or a hearing officer, not be reduced or denied for failure to provide this notice if - (i) The parents are not literate or cannot write in English; or (ii) Compliance with paragraph (d)(1) of this section would likely result in serious emotional harm to the child. (Approved by the Office of Management and Budget under control number 1820-0030) (Authority: 20 U.S.C. 1412(a)(10)(C))