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Special Education Law
DECISIONParent PrevailedIHO Case No. 222810

New York City Department of Education, Impartial Hearing Decision

August 22, 2022·Jean Marie Brescia·Representative

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

CASE NUMBER: 567716 - NYC: 222810

FINDINGS OF FACT AND DECISION

Case Number: 222810

Student’s Name: REDACTED

Hearing Requested By: Parent

Dates of Hearing: January 26, 2022

March 3, 2022

April 4, 2022

June 7, 2022

July 7, 2022

August 10, 2022

Actual Record Close Date: August 22, 2022

Hearing Officer: Jean Marie Brescia, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

January 26, 2022 For the Parent:

REDACTED, Esq.

For the Department:

REDACTED, District Representative

March 3, 2022 For the Parent:

REDACTED, Esq.

For the Department:

None

April 4, 2022 For the Parent:

REDACTED, Esq.

For the Department:

REDACTED, District Representative

June 7, 2022 For the Parent:

REDACTED, Esq.

For the Department:

None

July 7, 2022 For the Parent:

REDACTED, Esq.

For the Department:

None

August 10, 2022 For the Parent:

REDACTED, Esq.

REDACTED, Parent For the Department:

REDACTED

August 10, 2022 For the Parent:

REDACTED, Esq.

For the Department:

None

On December 16, 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 parent (“Parent”) requested the hearing on December 15, 2021, challenging the Department of Education’s failure to offer REDACTED a free appropriate public education for the 2021-2022 school year and seeking reimbursement for REDACTED’s tuition for the REDACTED Program at the REDACTED School (“REDACTED”), a non-public special education school. Ex. A at 1, 4.

A pre-hearing conference was conducted on January 26, 2022. Counsel for REDACTED’s parent clarified the relief requested and withdrew the claim for transportation. Tr. 2-3. The Department requested an adjournment of the March 3 hearing date on the morning of the hearing; the hearing was rescheduled for April 4. The hearing on the merits was conducted on April 4, June 7, July 7 and August 10, 2022. The Department did not appear on June 7 and an email was sent to the Department warning of a default if the Department was not represented on the next hearing date.. Tr. 40; IHO Ex. I. The Department did not appear on July 7 and was held in default. Tr. 55; IHO Ex. II.

The parties made applications on the record for extensions of the compliance date. The applications were granted by written Orders of Extension dated January 26, March 3, April 4, May 12, June 7, July 7 and August 10, 2022. The record closed on August 22, 2022, upon the hearing officer’s receipt and review of the transcript of the last day of hearing, and the Actual Record Close Date is August 22, 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 REDACTED-year-old young man whose disability is classified, pursuant to the IDEA, as learning disabled. Ex. A at 3.
  • • REDACTED has been REDACTED. Exs. C at 1, 18; D.
  • • REDACTED’s “receptive comprehension, attentional, and executive functioning weaknesses” impact his abilities to keep up with classroom instruction and comprehend written material. Similarly, his difficulties with expressive language, with the overlay of his executive functioning, attentional and organizational difficulties, impact his academic learning across the board and manifests clearly in his written work. Ex. C at 13-15; see also D at 3, M at ⁋. 29; Tr. 76-77.
  • • As a preschool student, REDACTED had difficulties with play skills, engaging with peers, following routines, making transitions, attention and anxiety. Ex. C at 2.
  • • Professionals familiar with REDACTED recommend that he attend small special education classes in which he can receive teacher support for remediation, specialized reading comprehension and writing interventions, direct instruction and modifications for math computations, and interventions to address his attentional, organizations and executive functioning weaknesses. Exs. C at 16-17, D at 3-4.
  • • REDACTED entered REDACTED for REDACTED, and he entered the REDACTED program in 2017. Exs. C at 1, M at ⁋ 28.
  • • REDACTED is a preschool through twelfth grade school; REDACTED is a special education support program for students at REDACTED with language-based learning disabilities who require “significant support” for executive functioning and academics, including one-to-one support, study hall periods, drop-ins for teacher support and consultation, especially with respect to managing school-related anxiety, and specialized exam review sessions. Ex. M at ⁋⁋ 7-10.
  • • Each student in the REDACTED program, including REDACTED, is “paired” with a REDACTED teacher who coordinates with classroom teachers on differentiation techniques and strategies to implement in the classroom for a REDACTED student, integrates supports throughout the school day, meets individually with REDACTED students, communicates with parents to support students at home, and collaborates with teachers and administrators when a student is struggling. Ex. M at ⁋⁋ 16-19, 31, 34.
  • • Classes at REDACTED are as small as four students; most classes include between eight and eighteen students, with students grouped by age, grade and ability levels. Exs. I at 5, M at ⁋⁋ 20, 22.
  • • REDACTED’s teachers, in conjunction with the REDACTED teacher, developed individualized lesson plans, small group lessons, and utilized teaching strategies designed for students with language disorders, processing and writing disorders, and REDACTED. REDACTED personnel worked with the classroom teachers to ensure that REDACTED was prompted to focus in class, had modified reading assignments, received modified and clarified directions for assignments, utilized video and audio recordings, and organized written work. Ex. M at ⁋⁋ 37-41.
  • • REDACTED also needed, and his teachers provided, intensive support to understand directions to assignments and then utilize teacher feedback to complete and submit assignments. Ex. M at ⁋⁋ 37, 42-44.
  • • REDACTED’s REDACTED teacher is trained in Orton-Gillingham, a research-based reading and writing program for students, like REDACTED, with learning disabilities. Ex. M at ⁋⁋ 34-36.
  • • REDACTED participated in Foundations classes in science, language and math. These classes are part of REDACTED and are remedial in nature. Ex. M at ⁋⁋ 32-33.
  • • REDACTED needed the Foundations science course and elementary statistics course due to his executive functioning and literacy skills levels. Ex. M at ⁋⁋ 34-36.
  • • REDACTED, and the REDACTED program, provide REDACTED with instruction to address his language-based learning difficulties, attentional deficits, and executive functioning delays and a small classroom environment in which teachers can address his individual needs. Furthermore, REDACTED benefited from the one-to-one sessions with the REDACTED teacher and the REDACTED support embedded in his classes. Ex. M at ⁋⁋ 30, 32, 42, 46.
  • • REDACTED made progress at REDACTED during the 2021-2022 school year. For example, he:
  • • Improved reading comprehension and required less support from his teachers when reading texts;
  • • Improved the organization/outlining of written work and his research skills;
  • • Improved his written work by engaging in the writing process with teachers, attending to teacher feedback, and developing and revising essays;
  • • Improved is ability to communicate with his teachers about his academic work;
  • • Improved his planning, organization and task initiation skills across his classes;
  • • Improved self-management skills and completed assignments in most of his classes, and completing those assignments on time;
  • • Improved his understanding of math concepts in his Statistics class; and
  • • Learned content material in science, social studies, technology/computer science, and Spanish.

Exs. G, H, I, K, L.

  • • REDACTED’s mother disagreed with the Department’s recommendation of general education with SETSS for REDACTED because such a program would not provide REDACTED with the individual instruction and executive functioning support that REDACTED needed. Ex. N at 2.
  • • REDACTED’s parents, through counsel, submitted a ten-day notice letter to the Department on August 25, 2021. Ex. B.
  • • REDACTED’s parents entered into an enrollment contract with REDACTED obligating them to pay the total 2021-2022 tuition of $77,500.00.[1] Ex. E. REDACTED’s parents have paid this tuition in its entirety. Exs. J, N at 3.

Decision

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).

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 is “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).

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). 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 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. Since the Department did not properly avail itself of its opportunity to offer testimony or documentary evidence to explain how its IEP for REDACTED was “reasonably calculated” to permit him to make progress given his unique circumstances, the Department did not carry its burden of proof and cannot prevail on the first “prong” of the Burlington/Carter test.

REDACTED’s parents bear 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 provided REDACTED with an educational environment in which his constellation of identified special education needs were addressed. In particular, REDACTED addressed REDACTED’s need for small classes in which he received the teacher supports, modifications and accommodations, as well as remediation, that he required in order to address his language-based, executive functioning needs and attentional needs so he could learn. The record is clear as to the extent of the individualized special education, supports, modifications and accommodations that REDACTED personnel provided to REDACTED. See paragraphs 7 through 15 above.

REDACTED has made progress at REDACTED during the current 2021-2022 school year. See paragraph 16 above. At REDACTED, REDACTED has made progress across the range of his challenges, clearly demonstrating that REDACTED is an appropriate special education placement for him. 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 was appropriate for REDACTED for the 2021-2022 12-month school year. As a result, REDACTED’s parents prevail with respect to the second Burlington/Carter criterion.

With respect to the third Burlington criterion, whether equitable considerations support REDACTED’s parents’ claims, the evidence establishes that REDACTED’s parents cooperated with the CSE by attending CSE meetings, communicating with Department personnel, 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 parent. As a result, REDACTED’s parents prevail with respect to the third Burlington/Carter criterion.

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

The Department of Education shall reimburse REDACTED’s parents for REDACTED’s placement at the REDACTED School for the 2021-2022 school year. The amount of reimbursement shall not exceed $77,500.00 the 2021-2022 school year.

Dated: August 22, 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

Parents’ Exhibits

Exh. #

Description

Date

Pages

A.

Request for Impartial Hearing

12/15/2021

5

B.

Ten Day Notice

08/25/2021

3

C.

Neuropsychological Evaluation

09/14/2018

26

D.

Letter from Psychiatrist, Dr. REDACTED

01/11/2021

5

E.

Enrollment Contract

01/16/2021

4

F.

Student Schedule

2021-2022

1

G.

Student REDACTED Report

09/2021 – 12/2021

6

H.

Student Trimester 1 Report Card

12/10/2021

6

I.

Student Trimester 2 Report Card

02/18/2022

7

J Tuition Affidavit 4/5/22 1

K Third Semester Report Card 1 21-22 SY 6

L Trimester Three Report Card 2 21-22 SY 6

M Affidavit of REDACTED, REDACTED 18

N Affidavit of REDACTED, Parent 3 Footnotes

[1] There are additional, non-tuition charges included in the enrollment contract. Ex. E at 3. These charges appear not to be tuition and were not elaborated at the hearing. I find these charges to be outside the scope of this hearing and nonreimbursable in this proceeding.