New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 563679 - NYC: 219385

FINDINGS OF FACT AND DECISION

Case Number: 219385

Student’s Name: REDACTED (“the student”)

Date of Birth: REDACTED

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

Request Date/Date Complaint Filed: October 12, 2021

Date(s) of Hearing: September 19, 2022

Actual Record Closed Date: May 22, 2023

Date of Decision: June 5, 2023 [Modified June 6, 2023]

Date of Distribution if Different than Decision Date:

Hearing Officer: Amy Lynne Itzla, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 19, 2022

For the Student:

REDACTED, Attorney

REDACTED, Mother

REDACTED, Director, REDACTED (“Private School”)

For the DOE:

REDACTED, 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) 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 September 19, 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. The DOE was represented by REDACTED. 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 May 22, 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

The student was REDACTED years old and entering the REDACTED grade at the beginning of the 2020-2021 school year. At that time, according to a neuropsychological evaluation obtained by the Parent and conducted in August and September 2018, the student had the diagnoses of ADHD, Combined Presentation; Social (Pragmatic) Communication Disorder; Generalized Anxiety Disorder; and Specific Learning Disorders, with impairments in written expression and in mathematics. (Parent Exhibit L) Among the recommendations contained in the evaluation report were that the student required “[C]ontinued placement in a full-time small, supportive special education class that can provide individualized emotional and social support and address his learning profile.” It was noted that, “A full-time special education school placement is critical to ensure appropriate progress and prevent any regression.” The DOE’s Committee on Special Education (“CSE”) convened on April 29, 2020, to develop an Individualized Education Program (“IEP”) for the student for the 2020-2021 school year. He had been classified by the CSE as a student with a disability, specifically designated as “Other Health Impairment.” (Parent Exhibit B) The CSE incorporated some of the content of the neuropsychological evaluation, which had been provided by the Parent to the DOE, into the IEP it created. The CSE’s recommendation included the following: a 12:1+1 special class for ELA, math, social studies, and sciences; counseling, in a group, one time per week for thirty-minutes; occupational therapy, individually, two times per week for thirty-minutes; speech-language therapy, in a group, two times per week for thirty minutes; and, speech-language therapy, individually, one time per week for thirty minutes.

By letter dated August 24, 2021, the Parent informed the DOE that they had received the IEP and had concerns. (Parent Exhibit C) The Parent also stated that there had been an error in date of the IEP referenced in the School Location Letter they received, and that they had attempted to contact the recommended school but could not reach anyone. The Parent indicated that they would contact the school when classes resumed in September, and they did not yet have enough information to determine whether the program and placement would be appropriate. The Parent informed the DOE that the student had been accepted to Private School (“REDACTED”) and reserved their right to enroll him there based on whether the DOE had made an appropriate recommendation.

By letter dated January 5, 2021, the Parent updated the DOE. (Parent Exhibit D) The Parent explained that, after many unsuccessful attempts to reach someone at the proposed school placement, they eventually spoke with school representatives who provided information to the Parent. The Parent explained to the DOE the basis for their determination that the program and placement were not appropriate for the student. The Parent stated that they would consider any other DOE recommendations, but that the student would continue at Private School and that they reserved their right to seek funding from the DOE.

The Parent’s DPC, dated October 12, 2021, alleged that the DOE failed to offer a Free Appropriate Public Education (“FAPE”) to the student for the 2020-2021 school year and that the student’s program at Private School was appropriate for him. The Parent is seeking reimbursement/funding by the DOE for the tuition, costs, and expenses of the Private School program.

POSITIONS OF THE PARTIES

THE DOE’S CASE The DOE waived its opportunity to present an opening statement and did not offer documents into evidence or witness testimony. The DOE chose not to put on a “Prong 1 case.” (T. 19; 21).^[1] At the conclusion of the hearing, the DOE requested that, “if tuition reimbursement is going to be granted, that it be reduced by the 20 percent which represents the religious instruction that the student received for 2020-2021 school year.” (T. 32)

THE PARENT’S CASE The Parent presented the testimony of two witnesses: REDACTED, Director, Private School; and REDACTED, the student’s mother.

Director provided her direct testimony through an affirmation, 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 affirmation into evidence and was provided with the opportunity to cross-examine the witness.

Director appeared at the hearing for cross-examination by the DOE. Director confirmed that Private School is a religious school. She testified that during the 2020-2021 school year, 79.76% of the student’s schedule was secular. (T. 27-29)

REDACTED, the student’s mother, provided her direct testimony through an affirmation, which is fully considered part of this decision although not included in its entirety. (Parent Exhibit N) The DOE did not object to the admission of the affirmation into evidence. Although REDACTED was present at the hearing and available for cross-examination, the DOE chose not to cross-examine her.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The DOE has the burden of establishing that it offered a FAPE to the 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 chose not to present a “Prong 1 case.” The DOE did not attempt to satisfy its burden of establishing that it offered a FAPE to the student. Therefore, the necessary finding is the DOE failed to offer a FAPE to the student for the 2020-2021 school year.

The Parent has the burden of establishing the appropriateness of the program they provided to the 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 the student strongly agree that the special education program and services provided to the student by Private School, a small program with individualized programming and special therapeutic programming for students with special education needs was appropriate for him. The school uses an inclusive approach tailored to each student, which is available due to the school’s location within a host and partner mainstream school. Inclusion opportunities are available in all areas, including socializing and participating in co-curricular and extra-curricular activities. Based on the student’s diagnoses, behaviors, and academic deficits, Private School was able to address each specific need, offer necessary supports and utilize individualized strategies. The student participated in a small classroom environment of students with similar needs and abilities, with the largest instructional ratio being seven students with three teachers. He had individual instruction for math, as well as small groups, for other areas requiring greater attention. Private School provided the student with the related services of speech-language therapy, occupational therapy, counselling, and art therapy. Throughout the 2020-2021 school year, the student made progress in all areas, met many of the academic goals developed by the school, increased his participation, and decreased his impulsivity. The details of the student’s progress towards each specific goal throughout the 2020-2021 school year are contained in the Comprehensive Student Plan developed for the student by Private School for the 2020-2021 school year. (Parent Exhibit H)

It must be emphasized that the DOE did not raise any challenge to the appropriateness of Private School. The only aspect of the Parent’s hearing request, the witness testimony, the documentary evidence, or the relief sought, with which the DOE disagreed, is related to the religious portion of the student’s school schedule. The remainder of the Parent’s case is undisputed. I find that the Parent has prevailed with respect to the appropriateness of the 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, with the exception of requesting the exclusion of the religious portion of the school program from a potential order of reimbursement. The record clearly established that the Parent actively participated in every aspect of the process in good faith. The Parent provided a neuropsychological evaluation to the DOE and continuously cooperated and communicated with the DOE. 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 the student for the 2020-2021 school year;

2. The Parent’s unilateral placement of the student at Private School was appropriate for the 2020-2021 school year;

3. There are no equitable considerations which would reduce or bar an award of reimbursement, with the exception of the religious portion of the school program; and, therefore,

4. The DOE shall immediately reimburse the Parent for 80% of the tuition paid to Private School for the student for the 2020-2021 school year in the amount of $81,600. This represents the non-religious portion of the full tuition paid by the Parent ($102,000). Proof of payment has already been established. (see Parent Exhibit K).

SO ORDERED.

DATED: June 5, 2023 Amy Lynne Itzla, Esq.

[Modified June 6, 2023] 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.

APPENDIX A – REDACTION IDENTIFICATION PAGE

SUBMIT THIS PAGE TO THE PARENT AND SCHOOL DISTRICT ONLY. DO NOT SUBMIT TO THE NYSED.

APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

Letter Description Date Pages

A Demand for Due Process 10/12/21 6

B IEP 4/29/20 16

C Letter from Parents to DOE (with fax 8/24/20 2 confirmation)

D Letter from Parents to DOE (with email 1/5/21 8 confirmation)

E Program Description, Private School undated 1

F Student’s Daily Schedule, Private School 2020-2021 1

G Statement Regarding In-Person Instruction 2020-2021 2 and Tuition, with 2019-2020 Distance Learning Plan, Private School

H Comprehensive Student Plan (CSP) 2020-2021 23 Private School

I Attendance Record, Private School 2020-2021 1

J Tuition Contract, Private School 2020-2021 1

K Affidavit of Payment 9/17/21 1 By: REDACTED, Private School

L Neuropsychological Evaluation August-September 13 By: REDACTED. and 2018 REDACTED

M Affirmation of Director 9/12/22 18

N Affirmation of Mother undated 3

Footnotes

[1] Citations to the transcript will be indicated with “T.” and the applicable page number.