New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 565715 - NYC: 221108

FINDINGS OF FACT AND DECISION

Case Number: 221108

Student’s Name: [Redacted]

Date of Birth: [Redacted]

District: REDACTED

Hearing Requested By: Parent

Dates of Hearing: April 26, 2022

June 10, 2022

Actual Record Close Date: June 14, 2022

Hearing Officer: Linda Agoston

On March 29, 2022, I was designated pursuant to the Individuals with Disabilities Education Improvement Act ("IDEIA"), 20 U.S.C. §1415, and Article 89 of the Education Law of the State of New The Private School, regarding the special education program of[Redacted]. (hereinafter "the Student"). The hearing was convened at the request of the Parents, through their attorney, who initiated this hearing on November 8, 2021 and the hearing was held on June 10, 2022.

The Parents alleged that the Department of Education ("DOE") failed to provide a free and appropriate public education ("FAPE") for the 2021-2022 school year and seek reimbursement of tuition for [Redacted] School hereinafter ("the Private School"). The Parents provided proof of payment in the form of an Affidavit that indicated credit card payments of $[Redacted] and bank statements (Exh. I) and reimbursement for the total tuition amount of $[Redacted] and the bookstore costs of $[Redacted], that included the [Redacted] tuition (Exh. I; Tr. at 59-60).

The Parents alleged that the DOE failed to provide a free and appropriate public education ("FAPE") for the 2021-202 school year on procedural and substantive grounds and challenged the February 25, 2021 review and the recommendation of the Committee on Special Education ("CSE") and challenged the program and placement. The Parents alleged that the recommended program of Integrated Co-Teaching classes for Math, ELA, Social Studies, Sciences and Special Education Teacher Support Services for ELA, Speech-Language Therapy and Counseling) did not provide sufficient support (Exh. A at 3). The Parents further alleged that the IEP was procedurally flawed for the following deficits: (1) that the CSE team was in possession of the independent evaluation yet did not consider the recommendations and the failure to be consider the evaluation was a denial of FAPE; (2) that the February 25, 2021 IEP goals and objectives were not discussed and the Parents were denied input in their development; (3) that the CSE failed to conduct a classroom observation; (4) that there was no discussion of the management needs or the proposed classroom or testing accommodations (Id.). The Parents further asserted the following: (1) that the IEP was not reasonably calculated to confer educational benefit upon the Student as the student to adult ratio was too large; (2) that the recommendation was contrary to the professionals who had direct knowledge of the Student needs; (3) that the IEP did not adequately address the Student's diagnosis and (4) that the goals contained no evaluative criteria and were vague and not measurable (Exh. A at 4). The Parents further asserted that they did not receive school placement as a result of the CSE meeting on February 24, 2021 and were not provided with the Prior Written Notice ("PWN") described in the regulation at 34 CFR 300.503(a), and the failure to be provided with the PWN was a denial of FAPE (Exh. A at 5).

BACKGROUND

The Student is a [Redacted] girl who is currently in the ninth grade at the Private School. She was evaluated when she was [Redacted] years old and attending another private school on November 13, 2018 and November 19, 2018, The neuropsychological evaluation was conducted by a Clinical Psychologist, who diagnosed the Student with a "language disorder (DSM-5 315.39), depressing her verbal aptitude, basic verbal skills, vocabulary and fund of knowledge, and inductive reasoning, honing in on a common concept" (Exh. B at 9), as well "a specific learning disorder with impairment in reading and written expression (DSM-5: 315.00, 315.2) as well as in math now (DSM-5: 315.1)" Exh. B at 10).

The Psychologist further diagnosed the Student with Anxiety, consistent with social and separation anxiety (DSM-5 300.23, 309.21) and noted that she was "self-conscious and sensitive to meanness, worried about teasing around her dyslexia" ( Exh. B at 11).

The Student's cognition was assessed by the Wechsler Intelligence Scale for Children-Fifth Edition ("WISC-5") and the Student obtained the following scores: the verbal comprehension score was 86, in the low average range, visual spatial score was 84, in the low average range, and the working memory score was 74, in the borderline range (Exh. B at 4). The Student's academic functioning was assessed on the Wechsler Individual and Achievement Test, Third Edition ("WIAT"-III), the Gray Oral Reading Tests, Fifth Edition("GORT-5"), the Test of Written Language, Fourth Edition ("TOWL-4") and the Psychologist noted that her word problem solving skills were Average on the WIAT-III in Math Problem Solving and her computation was Low Average on the WIAT-III in Numerical Operations; her basic math facts was Average for addition but Borderline to Low Average for subtraction and multiplication on the WIAT-III in Math Fluency and her Reading fluency was Low Average (Exh. B at 5-6). The Psychologist concluded that the Student was capable of normal achievement in math problem solving and creative writing yet, grammar and mechanics were below average and that reading was a dysfluent process (Exh. B at 9).

The Psychologist further assessed her speech and language and found a Borderline score when the Student recalled names presented with pictures in immediate recall and Deficient in delayed recall (NEPSY-II Memory for Names: 4th-9th percentile), and her visual and auditory attention and ability to resist distraction on the WISC-V was been "spotty, Deficient to Average on the Working Memory tasks" (Exh. B at 8).

The Psychologist recommended a "small, specialized, special education classroom setting" (Exh. B at 11) and "a small class in a small private specialized school setting with an intensive and individualized academic program specific to children with [Redacted] disorders" (Exh. B at 15).

The Enrollment Contract indicated that the Parents signed the Contract on March 1, 2021, and the Private School accepted Contract on the March 2, 2021 and indicated that the tuition for Grades 6-12 was $[Redacted] and the fee for the bookstore was $[Redacted] (Exh. E).

On August 23, 2021, the Parents wrote to the CSE chairperson to express their concerns that the IEP and program did not provide their daughter with an appropriate staffing ratio and alerted the chairperson that the CSE did not provide any information about a placement and no School Location Letter was received and further noted that there was no placement offered for the Student for the 2021-2022 school year; therefore, the Parents would seek reimbursement for the placement at the Private School (Exh. C).

The Program Description of the Private School for the 2021-2022 school year indicated that the Private School was accredited by the Middle States Association of Schools and Colleges and was registered by NYS (Exh. D at 1). The Private School was an inclusion school in which students with learning needs were assigned to a [Redacted] teacher, who was NYS certified or certified in a remedial specialty like literacy (Exh. D at 2). The students must have an IEP or a neuropsychological or psychological evaluation to be admitted to the program. The disabled students were educated with non-disabled students and for the 2021-2022 school year the student population was 330 and 215 students were placed in the [Redacted] Program (Id.). The[Redacted] teacher provided extended day instruction in a group twice a day in the morning and afternoon in a class of 11 and met individually twice a week for one period during a non-academic subject in art, music, drama or physical education (Id.). The [Redacted] teachers met with the classroom teachers to make the Private School's inclusion program successful and the [Redacted] teachers helped the classroom teachers to modify instruction and the [Redacted] students received education strategies such as check-ins for understanding, chunking of material and refocusing and redirection as well as extended time and "quiet rooms" for testing and preferential seating, language exemption and the use of a laptop for classrooms (Exh. D at 3).

THE DISTRICT’S CASE The District’s case was presented in the testimony of [Redacted], CSE District 3 representative who was present on behalf of the DOE and stated that he was not providing any evidence or witnesses (trans. 15). He did not challenge the assertions that the Student did not receive a FAPE for the 2021-2022 school year or that the equities favored the Parents (trans. 16.).

THE PARENT’S CASE The Parents case was presented in the testimony and Affidavit of the Director of the [Redacted] Program.

The [Redacted] Director, employed as a [Redacted] teacher at the Private School teacher for 11 years and in her current position for a single year, stated the Student struggled with significant language delays and had difficulties in working memory, reading comprehension and written expression (Exh. L at 2; trans. at 19). She stated that there were approximately 200 student in the [Redacted] Program and approximately 340 students in the school (Exh. L at 1; trans.26). She stated that the Student had executive functioning issues in time management and organization and difficulties in focus and attention (Id.).

The [Redacted] Director stated that the Student's [Redacted] teacher was a NYS certified speech pathologist who was able to support all the Student's needs. She stated that the small class sizes allowed the Student to be redirected and refocused and the [Redacted] teacher gave her individualized attention throughout the day (trans. 20-21). She described the [Redacted] Program as 3 parts: daily morning check-in for 30 minutes, daily afternoon sessions for 45 minutes in study hall and individual sessions to help with homework or to review any problems from the class work (trans 22-23). She stated that the [Redacted] teacher provided individual instruction for each student in her [Redacted] class for a class period twice a week to work on specific skills for 40 minutes (trans. 21; Exh. L at 4).

The [Redacted] Director listed the Student's deficits which included a language disorder and speech and language issues and asserted that the [Redacted] teacher used the Judith Hoffman's Writing Revolutions to address the Student's writing difficulties as well as outlines and graphic organizers (trans. 27-28;L at 10). She explained that the [Redacted] teacher addressed the Student's executive functioning difficulties by meeting individually twice per week to help the Student with her organization in a non-academic class and in the morning and afterschool group sessions in her class of 11 students to help her organize her ideas and to work on annotation to pull specific details from text and to summarize the text (trans. 28). She opined that the Student progressed in her ability to understand the text and to put the content of the text into her writing. She stated that the Student progressed in her organizational skills with the daily planner and prompting to stay focused and that her test taking and test preparation skills improved (trans. 29).

The [Redacted] Director stated that the Student's math class had 5 students and was taught by a certified special education teacher for math (trans. 65) and that her English class had 14 students and that the English teacher was employed by the Private School for the past 17 years and had a Master's degree in school leadership and a license to teach English was taught how to implement strategies for children with ADHD and anxiety and to provide differentiated instruction (trans. 32).

The [Redacted] Director related that the online system of [Redacted] allowed the Student to communicate with all her teachers by email and that noted that the [Redacted] teachers also communicated with the Student's classroom teachers and the Student's parents so that everyone was aware of assignments and worksheets (trans. 33-34). She opined that the Student's executive difficulty was addressed by the different resources of PowerPoints presentations, review guides, study guides and noted that the presentations and guides were also posted on [Redacted] and stressed that the [Redacted] teacher also tracked and monitored progress on quizzes and tests (trans. 35).

On cross she stated that while the Student had a history of anxiety she made friends quickly and that her anxiety was exasperated by tests or quizzes and her anxiety was mitigated by the [Redacted] teacher and counselor. She stated that the counselor saw on the Student on an "as needed" basis and explained that the [Redacted] teacher was able to plan a strategy to study for the test or quiz (trans. 42). She stated that the Student's peers in the [Redacted] class had speech and language needs such as dyslexia and had difficulties with written expression (trans. 43) and that the Student's peers in the academic classes were grouped by similar profiles and academic needs (trans. 47). She stated that the schedule allowed for flexibility as the Student moved into a more supportive math and science class in the 2021-2022 school year so that the Student was able to receive more scaffolding and structure within the classes (trans. 50).

On redirect the [Redacted] Director stated that the schedule allowed for students to move to a less or a more challenging class and that the different levels of each academic class remained the same on the schedule as the Student moved into a more supportive math class (trans. 54). She reviewed the Student's scheduled (Exh. K) and noted that the Student's Algebra's grade improved in the second semester as she moved to a more supportive Algebra class and opined that the report card indicated that the Student was able to keep up with her classes and that she demonstrated significant improvement and made the honor roll for quarter 3 (trans. 55) and her self-advocacy skills improved.

FINDING OF FACT, CONCLUSION OF LAW

Under IDEA, New The Private School State law and both the federal and State regulations, the right to a FAPE is guaranteed. There is no obligation on the part of the school district to provide the best education for the student but that education must be appropriate so that there is an opportunity for the student to make progress in his/her education. States receiving federal funds are required to provide "all children with disabilities" a "free and appropriate public education" (20 U.S.C. § 400[d][1][A]).(Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 122 [2d. Cir. 2007]). FAPE consists of specialized education and related services designed to meet a student's unique need, provided in conformity with a comprehensive written IEP (34 C.F.R. § 300.13). "To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances…." and "a student offered an educational program providing 'merely more than de minimis progress' from year to year can hardly be said to have been offered an education at all" (Endrew F. v. Douglas County School District, 580 U.S. ___ (2017), 2017 WL 1066260 [March 22, 2017]). To meet its burden of showing that it had offered to provide a FAPE to a student, the board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]). As for the program itself, the Second Circuit has observed that "'for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression'" (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S. ex rel. SS. V. Bd. of Educ. of the City Sch. Dist. of the City of Yonkers, 231 F.3d 96 at 103 (2d Cir. 2000); see Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119 at 130 (2d Cir. 1998).  This progress, however, must be meaningful; i.e., more than mere trivial advancement (Id. at 130). The student's recommended program must also be provided in the least restrictive environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

The Court in Rowley also observed that states are not required under IDEA to maximize every disabled child’s potential (Rowley, 458 U.S. at 198). The Second Circuit further observed that the IDEA is not intended to "secure the best education money can buy" or "guarantee any particular level of education" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119 [2d Cir. 1998]) (internal citations and quotation marks omitted).

In Application of the New The Private School City Dept. of Educ., Appeal No.12-087, the SRO held that 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];Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 [S.D.N.Y. July 3, 2008] [noting that a CSE must consider, among other things, the "'results of the initial evaluation or most recent evaluation'" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), 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]; see also Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9)." The legal standard applicable to a request of reimbursement for educational services, such as in this case, is well established. Reimbursement is granted if: (1) the services offered by the Board of Education are inadequate or inappropriate; (2) the services selected by the Parents are appropriate; and (3) equitable considerations support the Parents' claim (School Committee of Burlington v. Department of Education of Massachusetts, 471 U.S. 359 [1985]). The burden of persuasion in an administrative hearing challenging the appropriateness of an IEP is on the Department of Education. N.Y. Educ. Law §4404[1][c].

I find that the District presented no witnesses to establish that FAPE was offered for the 2021-2022 school year. I find that the SRO has found that allegations that are left unchallenged are deemed as true. (See Application of a Student with a Disability, Appeal No. 01-044). I find the evidence in the record is consistent with the allegations. I find that the District did not present any witnessed to defend Prong 1 of the Burlington/Carter test for reimbursement/prospective funding and did not contest any allegations contained in the due process complaint including allegations concerns the lack of an appropriate program and placement and predetermination and I find that the violations significantly impeded the Parent's procedural rights under IDEIA.

Accordingly, I find that FAPE was not offered for the 2021-2022 school year and the Parents prevailed on the Prong 1.

The Parent must establish that the proposed parental placement is appropriate under the IDEA, i.e., that the private school is offering an instructional program that meets the child’s special education needs. The fact that the facility selected by the Parent to provide special educational services to the child is not State-approved as a school for children with disabilities is not dispositive of the Parent’s claim for tuition reimbursement (Florence County School District Four v. Carter by Carter, 114 S.Ct. 361 [1993]). The Parent must prove that the student will receive an appropriate educational benefit from the program at The Private School. The Second Circuit framed the legal standard for the second prong in Frank G. v. Board of Education, 459 F.3d 356 (2d Cir. 2006) and Gagliardo v. Arlington Central School District, 489 F.3d 105 (2d Cir. 2007). Under Frank G. the Court held that "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" (Id.).

The Director of the [Redacted] Program stated that the Student's special education needs were met by the Private School inclusion program and small classes and that the Private School was able to meet her unique special education needs so that she could make academic progress(trans. 55). I credit the testimony and evidence and find that the Student's difficulty with attention, executive functioning and written expression were addressed by her teacher who used the Judith Hochman Single Paragraph Outlines and Multi-paragraph Outlines that enabled the Student to create a cohesive outline independently (trans. 27-28;Exh. L at 12). I find that the [Redacted] teacher, provided graphic organizers and outlines and that progress was evidenced by the testimony of the Writing teacher, who used scaffolding to improve attention and focus (Tr. at 76) and that the [Redacted] teacher provided the Student with strategies for organization, note taking, and prioritizing assignments (trans. 54). I find that the Student's social and emotional behavior improved as evidenced by her ability to make friends and that I find that the Student gained independence and self-confidence and I find that she was able to advocate for herself (Id.). I further find that her testing anxiety was mitigated by the [Redacted] teacher. I find the counselor, saw the Student on an "as needed" basis. I find that the [Redacted] teacher was able to plan a strategy to study for the test or quiz (trans. 42).

Testimony adduced at the hearing clearly demonstrates that the Private School provided a small structured therapeutic environment. I credit the testimony and evidence and find that the Private School was appropriate because the Student benefited from the instruction and supports provided by the academic teachers and the collaboration with the academic teachers and the [Redacted] teacher helped the Student devise strategies to complete assignments independently (trans. 35;54).

The evidence presented from the Parents indicated that focusing, organization, reading comprehension and written expression were issues for the Student and I find testimony adduced at the hearing established that these special education needs were met by her regular education teachers and special education teachers who provided checking, chunking, repetition, annotations and guided questions to ensure her deficits in reading comprehension and writing were addressed (trans. 27-28;L at 10).

I find that the classroom teachers addressed the Student's specific learning deficits using multi-sensory techniques such as graphic organizers, and planners as well as the online[Redacted]. I credit the testimony and find that the [Redacted] teacher used techniques with the Student that included graphic organizers, chunking or presenting information in small pieces, and the multi-modality instruction. I credit the evidence and testimony and find that the Student progressed academically. I find that her [Redacted] teacher individually met with her to address her deficits in writing and reading comprehension with special education strategies. I find the [Redacted] teacher further supported the Student's special education needs in light of her focusing issues and weak memory skills and processing skills and I find the Student improved in academics and confidence. I find that the Student was grouped appropriately for her academic needs and her social development at the Private School. I find that the Student's academic, social and emotional needs were met at the Private School. Therefore, I find that the Parents met their burden regarding the unilateral placement of the Student at the Private School for the 2021-2022 school year and that both the [Redacted] program and the inclusion program at the Private School met the Student's unique special education needs.

The third prong of the test for tuition reimbursement is whether the equities favor the Parents' position. Tuition reimbursement to be reduced or denied if the Parent (1) did not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the child from the public school or by written notice 10 business days before such removal (2) did not make the student available for an evaluation requested by the district prior to his “removal”, (3) took actions determined to be unreasonable. 28 U.S.C. Section 1412(a)(10)(c)(iii). I find the Parents timely informed the CSE on August 23, 2021, (Exh. C), that they intended to continue to enroll the Student at the Private School for the 2021-2022 school year when no appropriate program or placement was offered and after the most recent CSE meeting and complied with the requirements of 28 U.S.C. Section 1412(a)(10)(c)(iii). In this case, the Parents fully cooperated with the district to the best of their ability. I find that the equities favor the Parents' position.

Order

Therefore, it is hereby ordered that the Department of Education reimburse the Parents for the Private School's tuition in the amount of $[Redacted] and the bookstore costs in the amount of $[Redacted] upon proof of attendance and payment (the evidence of such payment must be acceptable to the Department of Education).

__________/S/__________

LINDA S. AGOSON, ESQ.

Impartial Hearing Officer

Dated: June 22, 2022

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 The Private School 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 ON APRIL 26, 2022

I Decision on Extension, 4/26/26, 1 p. IHO

DOCUMENTATION ENTERED INTO THE RECORD ON JUNE 10, 2022

A Impartial hearing request, 11/8/21,8 pp. Parents

B Neuropsychological evaluation, 11/11/18, 15 pp. Parents

C Letter from parent to CSE, ten-day notice, 8/23/21, 2 pp. Parents

D 2021-2022 [Redacted] School program description,

8/23/21, 2 pp. Parents

E The [Redacted] School enrollment agreement, 3/21, 4 pp. Parents

F The [Redacted] School weekly schedule, 2021/2022, undated, 1 p. Parents

G The [Redacted] School invoice, 3/2/21, 1 p. Parents

H The [Redacted] School affidavit, 10/26/21, 1 p. Parents

I Parent's proof of payments to school, various dates, 8 pp. Parents

J The [Redacted] School attendance report, 10/27/21, 1 p. Parents

K The [Redacted]

School Academic report, 4/1/22, 1 p. Parents

L Affidavit of REDACTED, 6/8/22, 13 pp. Parents

I Decision on extension, 4/26/22, 1 p. IHO

II Decision on extension, 6/10/22, 1 p. IHO