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Special Education Law
DECISIONParent PrevailedIHO Case No. 221481

New York City Department of Education, Impartial Hearing Decision

September 30, 2022·Sebastian A. Weiss·New York City Department of Education

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

NYSED # 566108 / NYC # 221481

FINDINGS OF FACT & DECISION

Case No.: 221481

Student’s Name: [REDACTED]

(hereinafter referred to as “Student”)

Date of Birth: [REDACTED]

District: [REDACTED]

(“District”)

Hearing Request by: [REDACTED]

(“Parent”)

Hearing Date(s): 5/4/22, 6/14/22

Record Close Date: 9/25/22

Hearing Officer: Sebastian A. Weiss

NAMES AND TITLES OF PERSONS WHO APPEARED:

For the Student:

[REDACTED]

(“Parent Representative”)

[REDACTED]

(“Parent or Mother”)

[REDACTED]

(“Unilateral Placement Director”)

For the Department of Education:

[REDACTED]

(“District Representative”)

BACKGROUND AND PROCEDURAL HISTORY

On November 12, 2021, the Parents filed a Due Process Complaint (“DPC”) pursuant to the Individuals with Disabilities Education Act (“IDEA”) and New York State Education Law. The relief sought by the DPC includes tuition reimbursement for the Student’s unilateral placement at the [REDACTED] (“Unilateral Placement”) for the 2021-22 school year (“School Year”), as well as transportation services. (Ex. A).[1]

The undersigned Hearing Officer was appointed to the above matter on November 16, 2021. A prehearing conference was conducted on January 7, 2022. The hearing on the merits was conducted on May 4 and June 14, 2022.

ISSUES AND ARGUMENTS

PARENT CASE:

The DPC alleges that the District denied the Student a Free Appropriate Public Education (“FAPE”) as required by the IDEA for the School Year by failing to provide an appropriate educational program and placement for the Student, which forced the Parent to place the Student at the Unilateral Placement. (Ex. A-2) The Parent’s case is based on the following arguments:

The February 1st, 2021 Individualized Educational Program, which recommends part-time ICT class with SETSS and related services in a community school, is not appropriate and not reasonably calculated to confer the student educational benefit. (May 4 T 33)

The Student needs a small, structured, self-contained environment that is geared to students with language based learning needs. (Id)

The Student's program at the Unilateral Placement for the School Year is appropriate. The Unilateral Placement provides the Student with specially designed instruction that adapts the content methodology and the delivery specific to the Student's needs and has enabled the Student to make progress. (Id 34)

The Parents did not hinder the District in its ability to develop an appropriate program for the Student. (Id 34)

The Parents could have withdrawn from the Unilateral Placement enrollment contract had they accepted a program recommended by the District and provided a notice to the Unilateral Placement. (June 14 T 85)

The Parents are withdrawing their claim for transportation services. (June 14 T 50)

The Parents presented thirteen (13) alphabetically listed documents into evidence. The Parents also presented the testimony of the Unilateral Placement Director and the Student’s Mother. The District did not object to the Parent’s evidence. (May 4 T 28)

DISTRICT CASE:

The District did not present a case or any evidence or witnesses. (May 4 T 27)

SUMMARY OF APPLICABLE LAW

The IDEA is a comprehensive statutory framework established by the United States Congress to ensure that students with disabilities are afforded a FAPE. 20 U.S.C. §1400(d)(1)(A); see Schaffer v. Weast, 126 S. Ct. 528 (2005); Bd. of Educ. v. Rowley, 458 U.S.176 (1982); Frank G. v. Bd. of Educ., 459 F.3d 356 (2d Cir. 2006). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP, which is reasonably calculated to enable the student to receive educational benefit. See Rowley; 20 U.S.C. § 1401(9)(D); 34 C.F.R. § 300.17; see 20 U.S.C. § 1414(d); 34 C.F.R. § 300.22. 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. § 300.114(a)(2); 8 NYCRR 200.6(a)(1).

In Endrew F. v. Douglas County School District, 580 U.S. 999, 14 (2017), the Court held that, “[t]o 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, as a focus on the particular child is at the core of the IDEA. The instruction offered must be “specially designed” to meet a child’s “unique needs” through an “individualized education program.” §§1401(29), (14) (emphasis added), to reflect the fact that a contemplated IEP must be focused on the “particular child that is at the core of the IDEA.”

Pursuant to New York Education Law §4404(1)(c), the board of education shall have the burden of proof, the burden of persuasion, and the burden of production in impartial hearings except for instances where the parent is seeking tuition reimbursement for a unilateral parental placement and in those cases the parent shall have the burden of persuasion and the burden of production as to the appropriateness of the placement. The burden of proof in matters such as this shall only be met upon a fair preponderance of the evidence. The preponderance of the evidence standard requires the trier of fact to find that the existence of a fact is more probable than its nonexistence. Concrete Pipe & Products of California, Inc. v. Construction Laborers Pension Trust for Southern California, 508 U.S. 602, 622 (1993). In other words, preponderance of the evidence is evidence that is more convincing than the evidence offered in opposition to it. Greenwich Collieries v. Director, Office of Workers’ Compensation Programs, 990 F. 2d 730, 736 (3rd. Cir. 1993), aff’d, 512 U.S. 246 (1994).

The decision in this case rests on a determination of the three-pronged test set forth by the United States Supreme Court, which provided that a board of education may be required to pay for educational 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. Dept. of Educ., Massachusetts, 471 U.S. 359 (1985); Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993).

Under the second prong of the Burlington/Carter test, the parents bear the burden of proving the appropriateness of the unilateral placement. See M.S. v. Board of Education of the City of Yonkers, 231 F.3d 96, 104 (2d Cir. 2000); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 94-29; Application of a Child with a Disability, Appeal No. 95-57. In order to meet that burden, the parents must show that unilateral placement offered an educational program designed to meet the Student’s special education needs. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 98-76; Application of a Child with a Disability, Appeal No. 94-29. A unilateral placement is only appropriate if it provides education instruction specifically designed to meet the unique needs of a handicapped child. Gagliardo v. Arlington Central School District, 489 F.3d 105 (2d Cir. 2007).

Regarding the placement of students with disabilities, N.Y. Comp. Codes R. & Regs. tit. 8 § 200.6(a)(3) states: “Students with disabilities placed together for purposes of special education shall be grouped by similarity of individual needs as defined in section 200.1(ww) of this Part, in accordance with the following: (i) The range of academic or educational achievement of such students shall be limited to assure that instruction provides each student appropriate opportunities to achieve his or her annual goals. The learning characteristics of students in the group shall be sufficiently similar to assure that this range of academic or educational achievement is at least maintained. (ii) The social development of each student shall be considered prior to placement in any instructional group to assure that the social interaction within the group is beneficial to each student, contributes to each student's social growth and maturity, and does not consistently interfere with the instruction being provided. The social needs of a student shall not be the sole determinant of such placement. (iii) The levels of physical development of such students may vary, provided that each student is provided appropriate opportunities to benefit from such instruction. Physical needs shall be considered prior to determining placement to assure access to appropriate programs. The physical needs of the student shall not be the sole basis for determining placement. (iv) The management needs of such students may vary, provided that environmental modifications, adaptations, or, human or material resources required to meet the needs of any one student in the group are provided and do not consistently detract from the opportunities of other students in the group to benefit from instruction.”

Regarding least restrictive environment, N.Y. Comp. Codes R. & Regs. tit. 8 § 200.1(cc) states that “Least restrictive environment means that placement of students with disabilities in special classes, separate schools or other removal from the regular educational environment occurs only when the nature or severity of the disability is such that even with the use of supplementary aids and services, education cannot be satisfactorily achieved. The placement of an individual student with a disability in the least restrictive environment shall: (1) provide the special education needed by the student; (2) provide for education of the student to the maximum extent appropriate to the needs of the student with other students who do not have disabilities; and (3) be as close as possible to the student's home.”

FINDINGS OF FACT

At the beginning of the School Year, the Student was a six year old boy entering the first grade. The Student is described as friendly, engaging and intelligent. (Ex. C, J, M)

The Student has a medical history of neonatal stroke and cerebral palsy and has been diagnosed with the following: (Ex. J)

• Spastic Hemiplegic Cerebral Palsy;

• Other Specified Attention-Deficit/Hyperactivity Disorder;

• Social (Pragmatic) Communication Disorder;

Due to his medical condition, the Student has limited mobility in his right hand (Ex. M-1, 4)

The Student began receiving private-based speech therapy at eight months old and began received physical and occupational therapy services at nine months old through the early intervention program (Ex. C-2)

For the 2018-2019 school year, the Student attended a mainstream preschool with 20 students and 4 adults, and 1:1 Special Education Itinerant Teacher (“SEIT”) services and related services. (Ex. A-2)

For the 2019-2020 school year, the Student repeated preschool with a 1:1 SEIT and related services. (Id)

In 2019, when the Student was four years old, an independent Neuropsychological Evaluation of the Student was conducted by both a Clinical Psychologist and a Clinical Neuropsychologist (“First Evaluation”). (Ex. C)

The First Evaluation states that “Cognitively, [the Student] demonstrates areas of great strength, alongside areas of weakness, with superior verbal reasoning abilities, discrepant from average fluid reasoning abilities, low average visual spatial and working memory abilities, and borderline range processing efficiency. Formal measures of sustained attention and qualitative observation of [the Student] during the evaluation indicated difficulties with sustained attention, and vulnerabilities in complex language were also evident.” (Ex. C-9)

The First Evaluation also highlights “weakness in his early writing and spelling skills, hindered by his fine motor difficulties” and “struggles with focus, stamina, frustration tolerance, perseverance when challenged, self-advocacy, activities of daily living, and initiating interactions with peers.” (Ex. C-9)

Regarding the Student’s education placement, the First Evaluation states that the Student “requires placement in a small, structured, and supportive fulltime special education classroom, within a full-time special education school for children who learn differently.” (Ex. C-10)

On April 29, 2020, the Parents participated in an IEP meeting (“2020 IEP Meeting”). (Ex. L-2) The IEP from this meeting was not presented into evidence (“2020 IEP”).

For the 2020-21 school year, the Parents unilaterally placed the Student at the Unilateral Placement for Kindergarten. (Ex. L-2, J-3)

On February 1, 2021, the CSE convened (“2021 IEP Meeting”) to develop the 2021 Individualized Education Program, which sets forth a disability classification of Other Health Impairment and recommends the following educational program (“2021 IEP”): (Ex. M)

  • • Special Education Teacher Support Services (SETSS), executive functioning/writing, Direct service, Group Service, five periods per week;
  • • Integrated Co-Teaching Services, ELA, ten periods per week;
  • • Integrated Co-Teaching Services, Math, ten periods per week;
  • • Integrated Co-Teaching Services, Social Studies, ten periods per week;
  • • Integrated Co-Teaching Services, Sciences, ten periods per week;
  • • Counseling Services, Group of 3, two 30 minute sessions per week;
  • • Physical Therapy, Individual Service, three 30 minute sessions per week;
  • • Speech-Language Therapy, Individual Service, two 30 minute sessions per week;
  • • Occupational Therapy (“OT”), Individual Service, three 30 minute sessions per week;
  • • Paraprofessional, Individual service, Full time;

The Student’s instructional/functional levels are indicated as Kindergarten for both reading and math. (Ex. M-18)

The Placement Recommendation set forth in the 2021 IEP is NYC DOE School Non Specialized (District 1-32). (Ex. M-18)

On February 17, 2021, the Parents entered into a 2021-22 Re-Enrollment Contract with the Unilateral Placement which indicates a tuition amount of $72,725 (“Enrollment Contract”). (Ex. D)

On August 5, 2021, a Notice of Unilateral Placement and Request for Transportation was sent to the District on behalf of the Parents (“Ten Day Notice”). (Ex. B)

The Student’s class at the Unilateral Placement during the School Year consisted of 12 students and two teachers. The Student also received Occupational Therapy and Speech Language Therapy. (Ex. H, I)

During the School Year, the Unilateral Placement prepared a Mid-Year Report, Mid-Year Speech and Language Report, and Mid-Year Occupational Therapy Report. (Ex. G, H, I)

The Unilateral Placement tuition has been paid in full. (Ex. F, L-4)

On October 16, 2021, an independent Neuropsychological Evaluation of the Student was conducted by a Clinical Psychologist/Neuropsychologist (“Second Evaluation”). (Ex. J)

With respect to School Placement and Academic Accommodations, the Second Evaluation states that the Student “continues to require a small, full-time specialized education program for students with learning differences. This academic placement should be designed for bright and capable students who require instruction a small student-to-teacher ratio (e.g., 12:1:1) and have ample opportunities for individual support and attention due to individualized learning need”. (Ex. J-7)

With respect to related services, the Second Evaluation recommends that the Student continue to receive occupational and physical therapy services to support gross and fine motor skills, handwriting, and daily living skills. (Ex. J-8) The Second Evaluation also recommends that the Student continue to receive speech-language therapy services to support his articulation and pragmatic language skills. (Id)

WITNESS TESTIMONY

Unilateral Placement Director The Parent presented the testimony of the Unilateral Placement Director by affidavit and at the hearing. (Ex. K) A summary of the relevant testimony of this witness includes the following:

The Unilateral Placement Director has worked at the Unilateral Placement for 12 years. (June 14 T 53) There are approximately 387 students at the Unilateral Placement. (Id 55)

The Unilateral Placement is an ungraded school organized in clusters. (Id 56) The Student’s cluster has 23 students, and he is in a class with 12 students. (Id) The Student’s class has two head teachers who are masters-level certified special educators. (Id 57-8) There is a speech and occupational therapist dedicated to the Student’s class. (Id 58) There is also a reading specialist, math specialist, reading coaches, math coaches. (Id) Programming begins at 8:30 and the cluster dismisses at 2:55. (Id 60)

The Student has made progress at the Unilateral Placement and his reading and math skills have improved dramatically. (Id 61)

The Unilateral Placement Director’s affidavit summarizes her education and work experience in special education. (Ex. K-1) The affidavit also describes the Unilateral Placement, including its teaching methods, faculty and staff, and classroom organization (K-2, K-3)

With respect to the Student, the affidavit describes the Student’s needs and challenges (Ex. K-4, K-5) The Student is engaging and intelligent with motor weaknesses, vulnerabilities in attention, stamina, and complex language, and self-regulated behavior. (Ex. K-4) The Student has challenges with aspects of reading, writing, math, regulation and attention and motor planning. (Id)

The Student’s homeroom class has 12 students and two co-teachers. (Ex. K-5) He is placed in a reading group with three other students and a math group with six other students who are working on the same skills and need similar support. (Ex. K-6)

The affidavit describes the Student’s performance and progress at the Unilateral Placement during the School Year. (Ex. K-6-9)

The affidavit concludes that the Unilateral Placement properly addressed the needs of the Student during the School Year. (Ex. K-9)

Mother The Mother testified by affidavit and at the hearing. A summary of the Mother’s relevant testimony is as follows:

The Parents participated in the 2020 IEP Meeting and expressed their concerns with the Student’s program. (Ex. L-2) The Parents disagreed with the recommended program and placed the Student at the Unilateral Placement. (Id)

The Parents participated in the 2021 IEP meeting and voiced their concerns. (Ex. L-3; June 14 T 68-9) The 2021 IEP recommended the same program as the 2020 IEP. (Id) The Parents subsequently received a placement for a public school which they disagreed with because it was too large and unsupportive. (Id)

The Parents signed the Enrollment Contract on February 17, 2021 following the 2021 IEP Meeting. (Id) The Parents understood they could withdraw from the Enrollment Contract if the District offered an appropriate public program. (Id)

At the Unilateral Placement, the Student was in a class with 12 students and two head teachers. (Id) A speech pathologist, occupational therapist, and school psychologist are integrated in the Student’s classroom. (Id; June 14 T 80)

The Unilateral Placement is an appropriate placement for the Student. (Ex. L-3, 4)

DECISION

For cases seeking payment for tuition at a Unilateral Placement, the first prong of the Burlington/Carter analysis is whether the District has met its burden of proof regarding whether the Student was provided a FAPE for the School Year.

Based on a preponderance of the evidence standard, I find that the Student was not provided a FAPE for the School Year. The District did not present a case in this regard. By comparison, the Parent presented credible evidence regarding the Student’s need for a full time special education classroom. For example, the First Evaluation and Second Evaluation describe the Student’s challenges and needs and recommend a full time special education program.

With respect to the second prong of the Burlington/Carter analysis, the issue for adjudication at the hearing was whether the Unilateral Placement was appropriate. Under the Burlington/Carter analysis, the Parent bears the burden of proof in this regard.

The evidence indicates that the Student’s program at the Unilateral Placement includes a full time special education classroom with an appropriate student teacher ratio and related services of Occupational Therapy and Speech Language Therapy. I credit the evidence and witness testimony in this regard. In addition, the District did not contest the appropriateness of the Unilateral Placement.

In concluding the second prong of the Burlington/Carter analysis, based on a preponderance of the evidence standard, I find that the Parent has met its burden of proof regarding the appropriateness of the Unilateral Placement.

The third prong of the Burlington/Carter analysis considers the equities of the case. The Parents participated in the 2020 and 2021 IEP Meetings and expressed their concerns, and sent a timely Ten Day Notice to the District.

In concluding the Burlington/Carter analysis, I find that the Student was not provided a FAPE for the School Year, and that the Unilateral Placement was appropriate. In addition, the equities favor the Parents.

ORDER

Based upon the foregoing, it is hereby:

  • • ORDERED THAT, the Student was not provided a FAPE for the School Year; and
  • • ORDERED THAT, the District shall reimburse the Parents for the Unilateral Placement tuition for the School Year.

SO ORDERED

DATED: September 30, 2022

/s/ Sebastian A. Weiss

Sebastian A. Weiss

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.

PARENT EVIDENCE:

Ex.

Document

Date(s)

Pages

A Due Process Impartial Hearing Request 11/12/2021 7

B Ten Day Notice 8/25/2021 3

C Neuropsychological Evaluation and Update 10/13/2019 16

D Enrollment Contract 2/17/2021 7

E Daily Schedule 2021-2022 1

F Payment Invoice 4/21/2022 1

G Mid-Year Report – 2021-2022 1/31/2022 14

H Mid-Year Speech and Language Report – 2021-2022 2021-2022 2

I Mid-Year Occupational Therapy Report – 2021-2022 9/21 – 1/22 4

J Neuropsychological Evaluation 10/16/2021 30

K Affidavit in Lieu of Direct Testimony – Unilateral Placement Director 6/9/2022 10

L Affidavit in Lieu of Direct Testimony – Mother 5/31/2022 4

M

IEP 2/1/2021 20 DISTRICT EVIDENCE: NONE. Footnotes

[1] Exhibits, or “Ex.”, shall be referred to as follows: “P” for Parent Exhibits, which are otherwise indicated alphabetically; “D” for District Exhibits, which are otherwise indicated numerically; “JE” for Joint Exhibits; “CB” for closing brief; “IHO” for any Impartial Hearing Officer’s exhibits; and “T” for the hearing transcript, accompanied by the applicable hearing date.