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Special Education Law
DECISIONParent PrevailedIHO Case No. 221034

New York City Department of Education, Impartial Hearing Decision

June 15, 2022·Jean Marie Brescia·75 8:1:1 program for [REDACTED] because they could not locate another placement for her and the District 75 8:1:1 was the most similar to a nonpublic school placement. Tr. 125, 141-142.

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

CASE NUMBER: 565621 - NYC: 221034

FINDINGS OF FACT AND DECISION

Case Number: 221034

Student’s Name: [REDACTED

Hearing Requested By: Parent

Dates of Hearing: December 20, 2021

January 12, 2022

February 17, 2022

March 10, 2022

April 14, 2022

Actual Record Close Date: June 1, 2022

Hearing Officer: Jean Marie Brescia, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

December 20, 2021 For the Parent:

[REDACTED], Esq.

For the Department:

None

January 12, 2022 For the Parent:

[REDACTED], Esq.

For the Department:

[REDACTED], Esq.

February 17, 2022 For the Parent:

[REDACTED], Esq.

For the Department:

[REDACTED], Esq.

March 10, 2022 For the Parent:

[REDACTED], Esq.

For the Department

[REDACTED], Esq.

April 14, 2022 For the Parent:

[REDACTED], Esq.

[REDACTED] [REDACTED], Parent

[REDACTED] [REDACTED], Program Director, [REDACTED] School For the Department:

Elizabeth Verillo, Esq.

Daniel K. Miller, Esq. (observer)

[REDACTED], Esq. (observer)

[REDACTED], Esq. (observer)

[REDACTED], Assistant Principal, [REDACTED] School [REDACTED] [REDACTED], School Psychologist

On November 9, 2021, I was designated as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1415(f), in the matter of [REDACTED]. [REDACTED]’s parents requested the hearing on November 8, 2021 in order to seek reimbursement for tuition for [REDACTED]’s placement at The [REDACTED] School for the 2021-2022 12-month school year. Ex. B. At the hearing, Parents’ counsel clarified that [REDACTED]’s parents were seeking reimbursement for tuition for the period from July 1, 2021 to and including January 14, 2022, when the family moved out of New York City, in a total amount of $70,416.64. Tr. 48.

A pre-hearing conference was conducted on December 20, 2021. The hearing was conducted on January 12, February 17, March 10 and April 14, 2022. The parties sought leave to file written post-hearing briefs. Such permission was granted, and post-hearing briefs were filed on May 13, 2022. IHO Exs. I, II.

The parties made joint applications on the record for extensions of the compliance dates. The applications were granted by Orders of Extension dated January 12, February 17, March 10 and April 14, 2022. The record closed on June 1, 2022, upon the hearing officer’s review and consideration of the parties’ post-hearing briefs, and the Actual Record Close Date is June 1, 2022.

Appended to the record are the names of the persons who appeared at the hearing and a list of the documents entered into evidence.

Findings of Fact

  • • [REDACTED] is an redacted-year-old girl whose disability, for the purposes of the IDEA, is classified as other health impairment. Tr. 61; Ex. 1 at 1.
  • • She is diagnosed with [REDACTED], a [REDACTED] condition, which has been identified as the cause of her [REDACTED] impacting her cognitive, motor and expressive communication skills. Ex. 2 at 2. She struggles with fine and gross motor skills, communication, information processing, limited attention, distractibility, regulation, social skills and adaptive skills. Tr. 135-137; Ex. 2 at 2, 5-7.
  • • [REDACTED] received speech, occupational and feeding therapies as well as special instruction through the Early Intervention program. Tr. 134.
  • • [REDACTED] received CPSE services as a preschool student, including speech, occupational and physical therapies, and attended preschool with a SEIT. Tr. 134-135.
  • • [REDACTED]’s parents secured a psychological evaluation of [REDACTED] in fall 2017. Ex. 2. Testing (WPPSI-IV) revealed that [REDACTED]’s cognitive skills were in the low average range (10th %ile) on the Verbal Comprehension Index, extremely low range (.3 %ile) on the Visual Spatial Index, and average range (58th %ile) on Vocabulary Acquisition. [REDACTED]’s difficulties with reciprocal attention and expressive language skills prevented her from participating in certain subtests, and a valid Full Scale IQ score could not be obtained. Ex. 2 at 4.
  • • The evaluator recommended that [REDACTED] attend a placement in a specialized and supportive classroom, with a small student:teacher ratio which can provide her with 1:1 support and direct instruction, in a special education school and that her program focus on communication and academic skills. Ex. 2 at 8.
  • • [REDACTED]’ parents secured an updated psychological evaluation of [REDACTED] in April 2018. Ex. 3. The evaluator continued to recommend that [REDACTED] attend a placement in a specialized and supportive classroom, with a small student:teacher ratio which can provide her with 1:1 support and direct instruction, in a special education school and that her program focus on communication and academic skills. Ex. 3 at 1.
  • • [REDACTED]’s parent attended a CSE “Turning 5” meeting for [REDACTED] in May 2018. The CSE recommended that [REDACTED] attend an 8:1:1 class in a New York State approved nonpublic school and deferred her placement to CBST. Tr. 137-138.
  • • [REDACTED]’s mother visited two approved nonpublic schools. One school did not have a kindergarten class; the other school did not offer a placement to [REDACTED]. Tr. 139. She did not hear further from the CBST or either school. Tr. 139.
  • • [REDACTED]’s mother also visited the local public school with [REDACTED]. The visit did not go well. Tr. 138. [REDACTED]’s mother received a placement letter for an ICT class in this school. Tr. 139.
  • • [REDACTED]’s parents then placed [REDACTED] at The [REDACTED] School in Manhattan for the 2018-2019 school year because it was a small school and enrolled students with profiles similar to [REDACTED]’s. Tr. 139.
  • • [REDACTED] is a private special education school serving children with language impairments, autism spectrum disorders, cognitive impairments as well as specific learning disabilities. Tr. 106; Ex. D.
  • • [REDACTED] continued to attend [REDACTED] because there were no other options for her. Tr. 140.
  • • The CSE convened an IEP meeting for [REDACTED] in April 2020. Ex. K. [REDACTED]’s parent and the [REDACTED]’s early childhood director attended the meeting. Tr. 126-127; Ex. 1 at 1.
  • • The CSE recommended that [REDACTED] attend a 6:1:2 class in a New York State approved nonpublic school and deferred [REDACTED]’s placement to the DOE’s CBST. Tr. 127-128, 140.
  • • Eleven of thirteen approved schools determined that they could not support [REDACTED]. [REDACTED]’s mother interviewed with the principals of the two remaining schools; one school was two hours away from the family’s home, and the other school enrolled children whose profiles were not similar to [REDACTED]’s. Tr. 140; Ex. 1 at 20-21.
  • • Since the DOE had been unable to identify an appropriate non-public school placement for [REDACTED], the DOE convened an IEP meeting for [REDACTED] on December 2, 2020. Tr. 124-125, Ex. 1 at 1.
  • • [REDACTED]’s early childhood director and [REDACTED]’s classroom teacher attended the IEP meeting. Tr. 59, 124.
  • • No new evaluations were reviewed by the CSE at the December 2020 meeting. Tr. 125, 129.
  • • [REDACTED]’s teacher estimated that [REDACTED] was functioning on pre-kindergarten to kindergarten levels in academics. Ex. 1 at 1.
  • • At the December 2020 meeting, CSE personnel informed [REDACTED]’s parent and [REDACTED] personnel that the CSE was recommending a District 75 8:1:1 program for [REDACTED] because they could not locate another placement for her and the District 75 8:1:1 was the most similar to a nonpublic school placement. Tr. 125, 141-142.
  • • [REDACTED]’s mother and [REDACTED] personnel expressed their concerns with the above recommendation. Ex. 1 at 20. The IEP states that, at the IEP meeting, District personnel “indicated that CBST notified the [CSE] that they have exhausted their list of NYSED approved non-public school and were unable to locate a school that the parents were in agreement with for [REDACTED] following the April 2020 IEP meeting.... [P]arent expressed that the previous CSE 9 team ha[d] already discussed and deemed a public school placement to be inappropriate for [REDACTED]....” Ex. 1 at 20; see also Ex. 5 at 2-3.
  • • The CSE also recommended that [REDACTED] receive the related services of speech and occupational therapies and counseling and that her parents be provided with parent counseling and training. Ex. 1 at 16.
  • • [REDACTED] [REDACTED] is a certified school psychologist employed by the Department. Her duties include participating in IEP meetings. Tr. 54-56.
  • • Ms. [REDACTED] did not attend the DOE’s December 2020 IEP meeting, nor any other IEP meeting held for [REDACTED], nor had she ever tested [REDACTED]. Tr. 57, 70-71, 82. She has never spoken with [REDACTED]’s parents nor with anyone present at the December 2020 IEP meeting, nor has she worked in a DOE District 75 8:1:1 classroom. Tr. 72.
  • • Ms. [REDACTED] explained at the hearing that she has reviewed the documents that the DOE had offered in evidence in this case. Tr. 57-58, 72.
  • • According to the documentation reviewed by Ms. [REDACTED], the DOE relied upon the following documentation to develop the December 2020 IEP: the 2017 psychoeducational evaluation, the 2018 addendum to that evaluation, and the previous year’s (June 2020) end-of-year [REDACTED] school report (Exs. 2, 3, 5). Ms. [REDACTED] also asserted that the DOE also relied upon “parent’s and school’s verbal report at the time of the meeting.” Tr. 60.
  • • Both evaluations recommended a special education school, not a District 75 program, for [REDACTED]. Tr. 80.
  • • The [REDACTED] June 2020 report details the [REDACTED] programming, strategies and interventions in place for [REDACTED], and the progress she made, during the 2019-2020 school year. Ex. 4. [REDACTED] improved her abilities to verbalize her feelings and regulate her emotions, her comprehension and responses to “WH” questions and functional language skills, her attentional skills, her feeding and self-help skills, pre-handwriting/fine motor skills, phonological awareness and identifying sounds in CVC words, and early math skills. [REDACTED] benefitted from, and made the foregoing gains through her related services of counseling and speech and occupational therapies and classroom instruction. Ex. 4.
  • • Ms [REDACTED] opined that the above evaluations were “sufficient” to develop an appropriate IEP for [REDACTED] because the psychoeducational evaluations were within three years of the IEP meeting and “any informational gaps” from the time of the end-of-year school report “would be filled in by parent and teacher verbal reports at the time of the meeting.” Tr. 60.
  • • Ms. [REDACTED] opined that [REDACTED]’s needs were addressed by the IEP goals and the related services of speech therapy, counseling and occupational therapy. Tr. 61-62.
  • • Ms. [REDACTED] opined that [REDACTED]’s strengths and needs were “present” in the IEP and addressed in the goals for early literacy and math skills, speech and language goals, counseling to address social-emotional needs (such as interacting and playing with other students), and occupational therapy to address fine and gross motor skills (such as pencil grasp). Tr. 63.
  • • Ms. [REDACTED] opined that the management needs listed on the IEP “appear to be individualized to the student” and “help support her in... accessing the curriculum,” and include provision for classroom staff to work with [REDACTED] one-to-one to teach her “new concepts.” Tr. 65-66.
  • • Ms. [REDACTED] opined that the OT and counseling goals would be worked on during OT and counseling. Tr. 69.
  • • [REDACTED]’s early childhood director, who had observed [REDACTED] and conferred with her teachers and related services providers regularly and has observed DOE District 75 8:1:1 programs, opined that a District 75 8:1:1 program was inappropriate for [REDACTED] because such a program would not provide her with the individualization and 1:1 instruction that she needed to learn. Tr. 116-118, 129, 131-132.
  • • The DOE recommended that [REDACTED] attend the [REDACTED]. Tr. 89; Ex. 5 at 5.
  • • [REDACTED]’s mother contacted the parent coordinator of [REDACTED] by telephone and left voicemail messages for her. The parent coordinator did not call her back as arranged. As a result, [REDACTED]’s mother was unable to visit the school. Tr. 143-144.
  • • [REDACTED] has 8:1:1 classrooms, a school-wide positive behavior intervention and support program, and provides the related services of speech, OT, PT and counseling. Tr. 91-92.
  • • At the beginning of the 2021-2022 school year, there was a seat available for [REDACTED] in a third grade 8:1:1 classroom in [REDACTED]; and [REDACTED] would have been able to implement the related services recommendations and management needs included in the IEP. Tr. 93-94, 96.
  • • [REDACTED] attended [REDACTED] for the time period from July 1, 2021 through January 14, 2022, when her family moved out of the country. Ex. J.
  • • [REDACTED] enrolled 70 students for the 2021-2022 school year. Tr. 105.
  • • Students are grouped in classes based upon levels of development and independence. Students who need much individualization and support with language and regulation challenges are placed in 6:1:2 classes (six students with one teacher and two associate teachers). Tr. 106-107.
  • • Associate teachers are trained to teach and lead activities in the classroom and to provide individualized instruction for students. Tr. 108-108.
  • • School staff includes speech and language pathologists, occupational therapists and psychologists who work in each classroom; each classroom is assigned a speech and language pathologist, occupational therapist and psychologist to work with the teachers and students in that classroom. Tr. 108
  • • [REDACTED] needed, and [REDACTED] provided, individualized small-group and 1:1 instruction in a highly structured classroom with integrated therapeutic support. Ex. E at 1; see also Ex. D.
  • • [REDACTED] was placed in a 6:1:2 class for the 2021-2022 school year because she required much individualized instruction in order to learn academic concepts and social skills, struggled attention and regulation, and needed supervision due to her behaviors and lack of safety awareness. Tr. 110-111.
  • • With individualized instruction, [REDACTED] made “steady gains” in academics. Tr. 112. In order to make these gains, [REDACTED] needed consistent repetition. By January 2022, when [REDACTED] left [REDACTED], she had learned a “handful” of sight words, “which was a huge growth for her.” Tr. 112, 124.
  • • [REDACTED] knew letter-sound correspondence, but she did not have the working memory and processing skills to be able to decode on an age-appropriate level. Tr. 112.
  • • In math, [REDACTED] could demonstrate knowledge of one-to-one correspondence and count when working 1:1 with a teacher who is helping her to focus. While she had memorized some math facts, she struggled to apply them in a functional manner. Tr. 113; Ex. E at 1, 9.
  • • When [REDACTED] engaged in verbal language, her speech rapidly devolved into scripting and perseverations on a physical attribute of the other person. She struggled to “have a more back and forth dialogue that is age-appropriate,” answer questions and stay on topic. Tr. 111; Ex. E at 1.
  • • [REDACTED] demonstrated delayed motor skills. She struggled to navigate uneven surfaces. Regarding fine motor skills, handwriting is very challenging for her due to fine motor precision and grasping deficits. [REDACTED] staff worked on handwriting with [REDACTED] as well as keyboarding skills. Tr. 113-114.
  • • [REDACTED] made progress during the school year in navigating the classroom and following classroom routines independently. Tr. 124; Ex. E at 1.
  • • [REDACTED]’s Summer 2021 [REDACTED] schedule included tabletop activities, morning meeting, literacy, playground time, snack, speech therapy, occupational therapy, science, social studies, art, math, lunch, read aloud, choice time, social groups, counseling, and end of day meeting. Ex. H.
  • • [REDACTED]’s September through June schedule is labelled with the name of the head teacher, “Ashley.” Ex. I. This schedule included table top activities, morning meeting, literacy, snack, read aloud, math, speech therapy, typing, lunch, journal, choice time, walk, playground time, movement, counseling, science, social studies, art and end of day meeting. Ex. I.
  • • [REDACTED] received literacy instruction 1:1 because her learning and attentional needs required such instruction. Tr. 119-120. She made progress with letter-sound correspondence, sight words and comprehension. Ex. E at 8.
  • • [REDACTED]’s writing instruction was provided in a group of four students. In writing, she worked on expanding sentences. Tr. 120. [REDACTED], due to her fine motor deficits and delays in encoding, dictated her writing ideas to a teacher, who worked with [REDACTED] to include details to expand her sentences. Tr. 121; Ex. E at 8.
  • • [REDACTED] made progress in typing class, developing her abilities to find specific letters and increase her typing fluency. Tr. 121.
  • • [REDACTED] had lunch in her classroom with four other students because she needed supervision while eating for safety reasons (she overstuffed her mouth and put non-edibles in her mouth) and to have lunch in a quiet environment. Tr. 122.
  • • During playground time, [REDACTED]’s teachers supported her gross motor skills and actively engaged with her to interact with her classmates. Tr. 122-123. As the school year progressed, [REDACTED] began to independently greet peers and started to initiate interactions. Tr. 123; Ex. E at 2.
  • • [REDACTED], through counseling, continued to learn to identify and express her emotions using words and develop tools to regulate herself. Ex. E at 2.
  • • [REDACTED]’s early childhood director opined that [REDACTED] was an appropriate placement for [REDACTED] because she was provided with individualized instructions and related services that she needed to develop and grow, and she developed specific academic skills and more independence. Tr. 130; see also Ex. E at 11.
  • • [REDACTED]’s parents submitted a ten-day notice letter to the DOE on June 16, 2021. Ex. A.
  • • [REDACTED]’s parents entered into a tuition contract with [REDACTED]. Ex. G. The total tuition for the entire 2021-2022 12-month school year was $130,000.00. Exs. F, G. [REDACTED]’s parents have paid [REDACTED]’s [REDACTED] tuition. Ex. F.

Decision

The central purposes of the IDEA are to ensure: (1) that students with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living and (2) that the rights of students with disabilities and their parents are protected. 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 U.S. 49, 51 (2005); Board of Education v. Rowley, 458 U.S. 176, 179-181 (1982). The first step in the inquiry is to determine whether the school district offered a free appropriate public education to the student. See, e.g., Application of a Child with a Disability, Appeal No. 07-008; Application of a Child with a Disability, Appeal No. 06-121. A free appropriate public education includes special education and related services designed to meet the student’s individual needs, provided in conformity with a written IEP. See 20 U.S.C. §1401(9); 20 U.S.C. §1414(d).

A school district offers a student a free appropriate public education when (1) it complies with the procedural requirements of the IDEA and (2) the IEP developed by the district must be “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 999 (2017); see also Rowley, 458 U.S. at 207; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 (2d Cir. 2014); R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012). 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. The school district also must ensure that “[t]o the maximum extent appropriate, children with disabilities are educated with children who are not disabled” that is, in the student’s least restrictive environment. 20 U.S.C. § 1412(a)(5)(A); 8 NYCRR 200.1(cc), 200.6(a)(1); see M.W. ex rel. S.W. v. New York City Dep’t of Educ., 725 F.3d 131,143 (2d Cir. 2013).

A board of education may be required to pay for education services obtained for a child by the child's 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. School Committee of the Town of Burlington v. Department of Education, 471 U.S. 359 (1985). The fact that the school selected by the parents is not approved as a school for children with disabilities by the State Education Department (as in the instant case) is not dispositive of the parents’ claim for tuition reimbursement. Florence County School District v. Carter, 510 U.S. 7 (1993).

A hearing officer may determine that a school district denied a student a FAPE based upon the district’s procedural errors in the development of the IEP, deficiencies in the substance of the educational program set forth in the IEP, or both. See L.O. v. New York City Dep’t of Educ., 822 F.3d, 95, 109 (2d Cir. 2016); see also 20 U.S.C. § 1415(f)(3)(E)(i); 8 N.Y.C.R.R. § 200.5(j)(5)(v). If a procedural violation is alleged, a hearing officer may find that a student did not receive an appropriate special educational program only if the procedural inadequacy: (1) impeded the student’s right to a free appropriate public education; (2) “significantly impeded the parents’ opportunity to participate in the decisionmaking process regarding the provision of a free appropriate education” to the student; or (3) “caused a deprivation of educational benefits.” 20 U.S.C. §1415(f)(3)(E)(ii); see also Application of a Child with a Disability, Appeal No. 07-007. Furthermore, “[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; see also L.O., 822 F.3d at 123-124.

In New York, the school district bears the burden of proof in 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. N.Y. Educ. Law § 4404(1)(c); see R.E., 694 F.3d at 184-85.

Did the Department Offer [REDACTED] a FAPE for the 2021-2022 School Year?

The particular educational needs of a student with a disability and the services required to meet the needs must be set forth in a written IEP. Honig v. Doe, 484 U.S. 305, 311 (1988); 20 U.S.C. § 1401(9)(D); see 20 U.S.C. § 1414(d); 34 C.P.R. § 300.320. An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs. 34 C.F.R. 300.320 (a)(1); 8 N.Y.C.R.R. 200.4(d)(2). In Endrew F., the Supreme Court spoke with clarity: an IEP “is constructed only after careful consideration of the child’s present levels of achievement, disability, and potential for growth” and must provide “instruction and services... with an eye toward ‘progress in the general education curriculum.’” 137 S. Ct. at 999, 1000. The CSE then must establish annual goals related to the identified needs of the student and provide for the use of appropriate special education services in the IEP. 8 N.Y.C.R.R. 200.4(d)(2)(iii), (v). In [REDACTED]’s case, this means an IEP that addressed her constellation of special educational needs consequent to her rare and complex genetic syndrome.

The Department argues that the program recommendations in the IEP are consistent with the evaluations considered at the meeting. IHO Ex. I at 7. Parent argues that the Department did not carry its burden of proof because Ms. [REDACTED]’s testimony was not based upon personal knowledge of [REDACTED] or what occurred at the IEP meeting, but rather was based solely upon reviewing documents, and, as such, “should be afforded little weight.” IHO Ex. II at 5-6.

Ms. [REDACTED] was asked to testify about an IEP meeting in which she was not a participant for a student she had never met. As a result, she was not able to explain how the 8:1:1 program as recommended by the CSE would address [REDACTED]’s needs. See J.D. v. New York City Dep’t of Educ., 15-4050-cv, 2017 U.S. App. LEXIS 1469 at *6-*7 (2d Cir. Jan. 27, 2017) (Summary Order) (“conclusory” testimony by DOE witnesses insufficient to support appropriateness of IEP). As the District Court in L.R. v New York City Department of Education, 193 F. Supp. 3d 209, 215 (E.D.N.Y. 2016), explained in rejecting conclusory testimony by a DOE witness, “merely stating that it is so” does not establish that an IEP is appropriate for a child. Rather, “[a] more detailed explanation of what justified” the recommended program, “with specific reference to [the child’s] circumstances—should have been provided to demonstrate the IEP was ‘reasonably calculated’ to provide benefits based on [the child’s] ‘unique needs.’” Id. (internal citation omitted). Since the DOE witness was unable to provide a detailed explanation of how the recommended District 75 8:1:1 program would address [REDACTED]’s unique circumstances and specific set of special education needs, the DOE is unable to bear its burden of proof.

Furthermore, parent cites to Application of a Student with a Disability, Appeal No. 21-091 at page 53, for the proposition that the testimony of witnesses who have personal knowledge of the student should be accorded more weight that the testimony of a witness who “conducted a limited review of the student’s records.” Here, more weight should be accorded to the testimony of the program director of [REDACTED], who is distinctly familiar with [REDACTED] and her learning needs, than to the testimony of Ms. [REDACTED]. As a result, I credit, and accord significant weight to, the program director’s testimony as to the inappropriateness of the recommended District 75 8:1:1 program.

Moreover, the record is clear that [REDACTED] needs significant and individualized 1:1 teaching and support given her particular diagnosis and consequent special educational needs. [REDACTED] staff and [REDACTED]’s parent made clear at the IEP meeting that she needs this type of instruction and support. See M.H. v. New York City Dep’t of Educ., 685 F.3d 217, 252 (2d Cir. 2012) (importance of evidence from individuals who knew and worked with student); S.B. v. New York City Dep’t of Educ., 14 Civ. 0349, 2015 U.S. Dist. LEXIS 82757 at *34-38 (S.D.N.Y. Jun. 25, 2015) (adjudicators must consider testimony of student’s teachers regarding appropriate class ratio for student); Jennifer D. v. New York City Dep’t of Educ., 550 F. Supp. 2d 420, 435 (S.D.N.Y. 2008) (witnesses who work with a student on a daily basis have “particular insight into the type of program appropriate” for that student). The IEP recommended that [REDACTED] have available to her 1:1 teaching of new material; but this was not sufficient for her needs. The record makes clear that [REDACTED] needed 1:1 instruction and support not only to learn new concepts, but also to provide her with repetition of material, encouragement of expressive communication and to engage with peers, encouragement and support to engage in learning due to her challenges with attention and distractibility, and supervision due to her lack of safety awareness.

In Endrew F., the Supreme Court spoke with clarity: an IEP “is constructed only after careful consideration of the child’s present levels of achievement, disability, and potential for growth” and must provide “instruction and services... with an eye toward ‘progress in the general education curriculum.’” 137 S. Ct. at 999, 1000. In [REDACTED]’s case, this means an IEP that addressed her special education needs and challenges that were consequences of her rare genetic syndrome. The DOE failed to present non-conclusory evidence to demonstrate that the IEP offered to [REDACTED] addressed her unique needs and was “reasonably calculated” to permit [REDACTED] to make meaningful educational progress. As a result, the Department fails on its burden of proof on “prong I” of the Burlington/Carter test.

Given the above conclusions, a conclusion as to whether or not [REDACTED] could have implemented the IEP is immaterial to this proceeding. However, I do find that the assistant principal testified credibly.

Is the [REDACTED] School Program Appropriate for [REDACTED]?

The parent bears the burden of proof concerning the appropriateness of [REDACTED] for [REDACTED]. See, e.g., Frank G. v. Board of Education of the Hyde Park Central School District, 459 F. 3d 356, 364 (2d Cir. 2006), cert. denied, 128 S. Ct. 169 (2007). To meet this burden, the parent must show that the educational services provided at [REDACTED] addressed [REDACTED]'s identified special education needs. See C.F., 74;6 F.3d at 82; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 837 (2d Cir. 2014); R.E., 694 F.3d at 187; G.B. and L.B. on behalf of N.B. v. Tuxedo Union Free School District, 09-CV-859 (S.D.N.Y Sept. 30, 2010); Application of the Bd. of City School District of the City of New York, Appeal No. 95-79, at pp. 6-7; Application of a Child with a Disability, Appeal No. 96-1. The Second Circuit instructs that:

No one factor is necessarily dispositive in determining whether parents’ unilateral placement is “reasonably calculated to enable the child to receive education benefits.” Rowley, 458 U.S. at 207. 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.”

Frank G., 459 F. 3d at 364 (emphasis added); also Bd. of Educ. of the Wappingers Cent. Sch. Dist. v. D.M., 831 F. App’x 29, 78 IDELR 2 (2d Cir. 2020) (Summary Order).

Furthermore, as the Second Circuit held in R.E.: “parents may provide evidence that the child made actual progress at their chosen private placement to support the adequacy of that placement.” 694 F.3d at 187 n.3.

The preponderance of the evidence establishes that [REDACTED] provides [REDACTED] with an educational environment in which his identified special education needs are addressed. First and foremost, [REDACTED] addresses [REDACTED]’s need for an individualized program with high levels of teacher support, as described in paragraphs 42 through 47, 51 and 53-61 above. See, e.g., A.M. v. New York City Dep’t of Educ., 845 F.3d 523, 545 (2d Cir. 2017); R.E., 694 F.2d at 194; M.H. v. New York City Dep’t of Educ., 712 F. Supp. 2d 125 (S.D.N.Y. 2010), aff’d 685 F.3d at 252; see also 34 C.F.R. § 300.39(b)(3) (“[s]pecially designed instruction means adapting, as appropriate to the needs of [the child], the content, methodology, or delivery on instruction”) (emphasis added).

[REDACTED] has made progress at [REDACTED] during the 2021-2022 school year as explained in paragraphs 47, 52 and 55 through 61 above. At [REDACTED], [REDACTED] has made progress across the range of her challenges, clearly demonstrating that [REDACTED] was an appropriate special education placement for her. See, e.g., T.K. v. New York City Dep’t of Educ., 810 F.3d 869, 878 (2d Cir. 2016) (unilateral program appropriate when it meets child’s needs and child makes progress); F.B. v. New York City Dep’t of Educ., 132 F. Supp. 3d 522, 555-56 (S.D.N.Y. 2015) (unilateral program appropriate when it provided instruction and related services individualized to child’s needs and which resulted in progress).

Considering the “totality of the circumstances” as required by the Second Circuit in Frank G., the evidence supports a finding that the program at [REDACTED] is appropriate for [REDACTED] for the 2021-2022 school year. As a result, [REDACTED]’s parents prevail with respect to the second Burlington/Carter criterion.

Equities

With respect to the third Burlington criterion, whether equitable considerations support the parent’s claims, the evidence establishes that [REDACTED]’s parent cooperated with the CSE by attending CSE meetings, communicating with Department personnel, expressing her concerns about the IEP to the CSE and providing the requisite statutory notice. See, e.g., R.E., 694 F.3d at 185, 195; M.F. v. New York City Dep’t of Educ., 2013 U.S. Dist. LEXIS 79181 at *34-*35 (S.D.N.Y. June 4, 2013) (“equitable considerations” include parental cooperation with the school district, attending CSE meetings, and providing notice to the school district). Equitable considerations favor the award of relief to [REDACTED]’s parents. As a result, [REDACTED]’s parents prevail with respect to the third Burlington/Carter criterion. There is one caveat here: an award for reimbursement, as [REDACTED]’s parents recognize (Tr. 48) may only be for the time period that [REDACTED] was in attendance at [REDACTED] during the 2021-2022 school year.

Therefore, for all the above reasons, it is ORDERED that:

The Department of Education shall fund [REDACTED]’s placement at [REDACTED] School for the period of her attendance from July 1, 2021 through and including January 14, 2022. The amount of funding shall not exceed $ 70,416.64. The funding shall be reimbursement to [REDACTED]’s Parents upon presentment of proof of payment.

Dated: June 15, 2022

______________________________

JEAN MARIE BRESCIA, ESQ.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the 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.

DOCUMENTATION ENTERED INTO THE RECORD

Department of Education Exhibits

#

Document Description

Date

Page Count

Individualized Education Program with Attendance Sheet

12/2/2020

22

Psychological Evaluation

9/26/2017

12

Psychological Evaluation and Addendum

4/5/2018

14

[REDACTED] School End-of-Year Report

June 2020

6/15/2021

11

Social History Update

04/20/2020

3

Parents’ Exhibits

  • • Ten Day Notice June 16, 2021 2 pgs
  • • Impartial Hearing Request November 5, 2021 7 pgs
  • • [REDACTED] Program Description 2021-2022 1 pg
  • • [REDACTED] 6:1:2 Description Undated 1 pg
  • • [REDACTED] Mid Year Report January 2022 11 pgs
  • • [REDACTED] Payment Affidavit October 19, 2021 1 pg
  • • [REDACTED] Enrollment Contract February 2, 2021 2 pgs
  • • [REDACTED] Summer Schedule Summer 2021 1 pg
  • • [REDACTED] School Year Schedule 2021-2022 1 pg
  • • [REDACTED] Attendance January 14, 2022 1 pg
  • • IEP April 23, 2020 33 pgs IHO Exhibits I May 13, 2022 DOE Closing Brief 15 II May 13, 2022 Parent’s Closing Brief 17

Footnotes

[5] Prior Written Notice and School Location Letter