New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 563673 - NYC: 219379

FINDINGS OF FACT AND DECISION

Case Number: 219379

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

Date of Birth: REDACTED

School District: New York City Department of Education Hearing Requested by: REDACTED (collectively referred to as “Parent”)

Request Date/Date Complaint Filed: October 12, 2021

Date(s) of Hearing: June 15, 2023; July 7, 2023

Actual Record Closed Date: April 1, 2023

Date of Decision: April 15, 2023

Date of Distribution if Different than Decision Date:

Hearing Officer: Amy Lynne Itzla, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 15, 2022

For the Student:

REDACTED, Esq., Attorney For the DOE:

REDACTED, Esq., Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 7, 2022

For the Student:

REDACTED, Esq., Attorney

REDACTED, Mother

REDACTED, Head of School, REDACTED (“PRIVATE SCHOOL”)

For the DOE:

REDACTED, Esq., Attorney

INTRODUCTION AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on the Parent’s Due Process Complaint (“DPC") filed on or about October 12, 2021. (Parent Exhibit A)^[2] The undersigned IHO was appointed to this matter on March 8, 2022, by the New York City Department of Education (“DOE”).

A hearing was held on June 15, 2022, and July 7, 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 was represented by REDACTED, Esq. A list of the individuals who appeared at the hearing and a list of the documents received into evidence are attached to this decision. The record was closed on April 1, 2023.

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 the Findings of Fact and Decision in this matter is being issued 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 almost REDACTED years old and entering REDACTED grade at the beginning of the 2021-2022 school year. He had been classified by the DOE, through its Committee on Special Education (“CSE”), as a student with a disability, specifically, a speech or language impairment. The CSE convened on February 2, 2021, to develop an Individualized Education Program (“IEP”) for Student for the 2021-2022 school year.

By letter dated June 18, 2021, the Parent informed the DOE that there had been no Individualized Education Program (“IEP”) received following the CSE meeting. (Parent Exhibit B) The Parent also stated that, on June 17, 2021, the Parent had received a school location letter, placing Student at REDACTED for the 2021-2022 school year. The Parent had scheduled and was awaiting a virtual tour. The Parent gave notice to the DOE that, “Unless and until the CSE offers Student an appropriate program and placement, he will attend PRIVATE SCHOOL and we will seek reimbursement for the cost of his education for the 2021- 2022 school year.” In a letter dated June 28, 2021, the Parent stated they still had not received an IEP to review. (Parent Exhibit C) The Parent explained that, following the virtual tour, they had determined that the school placement would not appropriately meet Student’s needs and provided the reasons for that conclusion. The Parent confirmed that Student would be attending the PRIVATE SCHOOL and the Parent would be seeking reimbursement for the cost of his education for the 2021-2022 school year.

The Parent’s position is that the DOE failed to offer a FAPE to Student for the 2021-2022 school year, that PRIVATE SCHOOL was an appropriate placement for him, and that the equities favor the Parent. The Parent is seeking tuition reimbursement from the DOE for the tuition paid to PRIVATE SCHOOL for Student for that school year.

POSITIONS OF THE PARTIES

THE DOE’S CASE The DOE waived its opportunity to present an opening statement, did not offer witness testimony, did not cross-examine the Parent’s witnesses, and waived its opportunity to make a closing argument. When the DOE was given an opportunity to present an opening statement, the following exchange occurred:

HEARING OFFICER ITZLA: And is the Department of Education conceding a failure to offer a FAPE to the child for the school year in question?

MR. REDACTED: Correct.

(T. 22)^[3]

Therefore, the DOE conceded that it failed to offer a FAPE to Student for the 2021-2022 school year. The DOE did not challenge the Parent’s position that the unilateral placement of Student at PRIVATE SCHOOL was appropriate, did not raise any equitable considerations that could affect a remedy, and did not offer any disagreement with, or opposition to, any aspect of the Parent’s entire case.

THE PARENT’S CASE The Parent presented the testimony of two witnesses: REDACTED, Head of School, PRIVATE SCHOOL; and REDACTED, Student’s mother.

REDACTED provided her direct testimony through a sworn affidavit, which is fully considered part of this decision although not included in its entirety. (Parent Exhibit M) The DOE did not object to the admission of the affidavit into evidence. REDACTED appeared for the hearing to be available for cross-examination by the DOE. The DOE chose not to cross-examine REDACTED.

REDACTED was the Head of School at PRIVATE SCHOOL during the 2021-2022 school year. She described the school as “a small, full-time special education school for students with speech and language delays and learning disabilities.” She stated that, “[F]or the 2021-2022 school year, there were 60 students enrolled in the program. PRIVATE SCHOOL serves students who are in kindergarten through 12th grade.” “The typical classroom size is 6 students with 1 certified head teacher, 1 assistant teacher, and each class is assigned a Speech-Language Pathologist (SLP) who pushes into the classroom. PRIVATE SCHOOL provides related services of occupational therapy, speech-language therapy, and counseling.”

REDACTED testified that she had regular opportunities to observe Student formally and informally during various parts of his day. He was placed in a small classroom of 6 students, 1 head teacher, 1 assistant teacher, and 1 SLP. She described the degrees and certifications of the classroom professionals. Student was placed in the class “based on academics and social skills, as well as behavioral needs. He was placed with peers who were functioning on a similar level academically and who were positive models for him socially and behaviorally.” With regard to his needs, she stated that following:

Student is a very complex child with both academic and medical challenges. He has been diagnosed with a seizure disorder, a genetic mutation in the UBE2A gene, speech-language difficulties, and intellectual disability. Student is also easily distracted and requires constant redirection. Student becomes easily dysregulated when faced with challenging social or academic situations or tasks that he perceives to be challenging. This includes engaging in attention-seeking and disruptive behaviors in the form of tapping objects or lifting his legs off the ground and rocking his chair back and forth. In more escalated situations, Student will take objects from other people’s desks (usually teachers) and break them, leave his seat, become oppositional, or rip up his schoolwork. Placing Student in a small class, using a multi-sensory approach, and scaffolded instruction was vital to his academic and social-emotional progress throughout the year.

REDACTED explained in detail the methods and strategies used to address all areas of Student’s academic needs and deficits. She also testified to the goals that were developed by Student’s teachers and SLP. She provided examples to support her testimony that he made progress in all areas of ELA, including reading and writing, and in math.

She stated that, “PRIVATE SCHOOL also provided Student with Social Skills and Life Skills Group during the 2021-2022 school year. This class was co-led by an Occupational Therapist and a Speech Language Pathologist (SLP). The group was highly individualized; it met once as a full group (5-6 students) and then divided into two smaller sub-groups (2-3 students).” Student “made great progress in his daily living and social skills.” REDACTED addressed Student’s occupational therapy needs and program of services, as well as his speech-language challenges, services, and goals. He made progress in both areas.

REDACTED explained that, “PRIVATE SCHOOL tracks student progress through a multifaceted approach that includes pre- and post-unit assessments, class participation, review of student work, and assessment. Student progress is tracked through the issuance of written progress reports twice per year.” She stated that, “Student’s progress reports provide accurate depictions of the areas that Student worked on [and] the progress he made throughout the 2021-2022 school year. (Parent Exhibits J, K)

REDACTED stated her opinion that, “PRIVATE SCHOOL appropriately met Student’s special education needs for the 2021-2022 school year. Our program was able to support him academically, socially, and emotionally, by providing him with peers who were appropriate for him and with individualized instruction and related services to address his needs.”

REDACTED provided her direct testimony through a sworn affidavit, which is fully considered part of this decision although not included in its entirety. (Parent Exhibit L) The DOE did not object to the admission of the affidavit into evidence. REDACTED appeared for the hearing to be available for cross-examination by the DOE. The DOE chose not to cross-examine REDACTED.

REDACTED described Student. as “a friendly and charming child with a good sense of humor. He likes to be the center of attention and often says he is ‘famous’ at school because everyone knows who he is, and he likes to say hi to everyone. He is also resourceful in that he tries to persuade his sister to do his homework or will sneak a calculator when doing his math homework. He is very knowledgeable about topics that interest him such as karate or video games.” She explained his diagnoses, associated difficulties, and described his deficit areas. He has been receiving special education services since Early Intervention.

REDACTED testified that she and her husband both participated virtually in the CSE meeting held on February 2, 2021. The CSE’s recommendation for Student was an 8:1:1 classroom in a specialized District 75 school. The Parent expressed their concerns at the meeting. “[A]ll of the professionals who worked closely with Student and participated in the February 2, 2021 IEP meeting disagreed with the recommendation.” “They believed that he required a small, full-time special education school for students with language-based learning disabilities where he would be placed in small classes (less than 8 students) and receive intensive and individualized instruction specifically tailored to his learning, language and attentional deficits. The professionals provided this input at the IEP meeting, however the CSE disregarded their input.”

REDACTED confirmed that the DOE did not provide an IEP prior to the 2021-2022 school year and, therefore, she was unable to review it to not see if it accurately reflected Student’s needs or contained appropriate goals. REDACTED described receiving a school location letter, having a virtual tour, and the reasons that the placement would not have appropriately met Student’s special education needs. REDACTED stated that Student continued to require the level of intensive support he had been receiving in order to learn and make progress. REDACTED referred to the letters sent to the CSE. (Parent Exhibits B, C) She stated that, “If the CSE had offered an appropriate program for Student for the 2021-2022 school year, we certainly would have considered it. Our goal is to have Student in a setting where his needs are being appropriately met and he is receiving the support that he requires in order to learn.”

REDACTED described the program and services provided to Student at PRIVATE SCHOOL and the ways in which he demonstrated “significant academic progress” in the 2021-2022 school year. He also made “solid progress socially and emotionally,” which she explained. REDACTED testified that “appropriately met Student’s special education needs over the 2021-2022 school year. We attribute his progress to the full-time special education instruction, small school environment, intensive small group and 1:1 instruction by teachers trained to teach students with language and learning challenges like Student” The Parent is seeking reimbursement for the tuition for Student’s placement at PRIVATE SCHOOL for the 2021-2022 school year, which is a total of $110,000 and has been paid in full. (Parent Exhibits E, F)

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The DOE has the burden of establishing that it offered a FAPE to Student (R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-185 [2d Cir. 2012]; Educ. Law § 4404[1][c]). 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; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E., 694 F.3d at 189-190; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). The Supreme Court has indicated that "[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement" (Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. __, 137 S. Ct. 988, 999 [2017]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). 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 (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245).

A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). "The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created" (Endrew F., 137 S. Ct. at 1001). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations 5 omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and... affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Endrew F., 137 S. Ct. at 1001 [holding that the IDEA "requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances"]; Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]).

The DOE did not even attempt to claim that it had met any of its obligations to Student. The DOE barely participated in the impartial hearing process. The DOE chose not to present a case at all, waived its opportunities to present an opening statement and closing argument, and simply conceded its failure to offer a FAPE to Student for the 2021-2022 school year.

The Parent has the burden of establishing the appropriateness of the program they 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, they must demonstrate that the services 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)

I find that the Parent has prevailed with respect to the appropriateness of the Student’s placement at PRIVATE SCHOOL. Those who know Student strongly agree that the special education program and services provided to Student by PRIVATE SCHOOL, a small, full-time special education school for students with speech and language delays and learning disabilities, was appropriate for Student. The program was able to address his needs, provide individualized instruction, and otherwise support him academically, socially, and emotionally. He made progress due to the program being tailored to his individual needs. REDACTED and REDACTED provided persuasive and unrefuted testimony and supporting evidence to this effect. The witnesses strongly affirmed the appropriateness of the program to address Student’s individual and complex needs. It was the consensus of the witnesses that the program is reasonably calculated to allow Student to receive educational benefits and make meaningful progress. REDACTED and REDACTED both described the significant progress Student made during the 2021-2022 school year.

It must be emphasized that the DOE did not raise any challenge to the appropriateness of PRIVATE SCHOOL. There has been no aspect of the Parent’s hearing request, the witness testimony, the documentary evidence, or the relief sought, with which the DOE disagreed. The entirety of the Parent’s case is undisputed. I find that the Parent has prevailed with respect to the appropriateness of Student’s placement at PRIVATE SCHOOL.

The final criterion for an award 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]). An award may be impacted by a parent’s 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 an award in favor of the parent. (Application of a Child with a Disability, Appeal No. 04-049).

There were no assertions made by the DOE with regard to any equitable consideration that would preclude or adversely affect an order in favor of the Parent. The record clearly established that the Parent actively participated in every aspect of the process in good faith. The Parent continuously cooperated and communicated with the DOE. Although there was no IEP received, the Parent still toured and considered the school placement. The Parent corresponded with the DOE at each step to share their concerns. Unfortunately, their efforts were not responded to. There is absolutely no basis on which to reduce or modify the remedy for the Parent.

ORDER

1. The DOE failed to provide a FAPE to Student. for the 2021-2022 school year;

2. The Parent’s unilateral placement of Student at PRIVATE SCHOOL was appropriate for the 2021-2022 school year;

3. There are no equitable considerations which would reduce or bar an award of reimbursement; and, therefore,

4. The DOE shall immediately reimburse the Parent for the tuition paid to PRIVATE SCHOOL for Student for the 2021-2022 school year in the amount of $110,000. Proof of payment has already been established. (see Parent Exhibits E, F).

SO ORDERED.

DATED: April 15, 2023 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.

THIS PAGE NOT SUBMIT TO THE NYSED.

APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

Letter Description Date Pages

A Due Process Complaint 10/12/21 4

B Parent Letter with Confirmation Receipt 6/18/21 2

C Parent Letter with Confirmation Receipt 6/28/21 3

D 2021-2022 Enrollment Contract 4/7/21 5

E Affidavit of Payment 2/17/22 1

F Proof of Payment various dates 5

G Daily Attendance Record 2021-2022 1

H School Schedule 2021-2022 2

I PRIVATE SCHOOL Program Description undated 2 J 2021-2022 Mid-Year School Reports various dates 34 and Goals

K 2021-2022 End of Year Reports and Goals various dates 47

L Testimony Via Affidavit - REDACTED 7/5/22 5

M Testimony Via Affidavit - 7/7/22 6 REDACTED

Footnotes

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

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

[3] References to the transcript are indicated by “T.” followed by the page number(s).