New York City Department of Education, Impartial Hearing Decision

NYSED # 568506 / NYC # 223480

FINDINGS OF FACT AND DECISION

Student’s Name: [REDACTED]

(hereinafter referred to as “the Student”)

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested by: [REDACTED] (hereinafter referred to as “the Parents”)

Record Close Date: September 8, 2022

Date of Decision: September 19, 2022

Hearing Officer: Lisa S. Rusk, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 26, 2022

For the Student

[REDACTED], Attorney

For the Department of Education:

[REDACTED], District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 6, 2022

For the Student

[REDACTED], Attorney

[REDACTED], Attorney

[REDACTED], Parent

[REDACTED], Director and Principal, [REDACTED]

For the Department of Education:

[REDACTED], District Representative

PROCEDURAL HISTORY On January 5, 2022, the Parents of the Student filed a due process complaint (DPC) against the [REDACTED] (hereinafter referred to as the “District”), alleging the failure of the District to provide a Free Appropriate Public Education (FAPE) to the Student for the 2021-22 school year and seeking reimbursement/direct payment for their unilateral placement at the [REDACTED] (hereinafter referred to as “the private school”). The undersigned was appointed as impartial hearing officer (“IHO”) on April 28, 2022. A prehearing conference was held on May 5, 2022. A status conference was held on June 1, 2022, and an order of extension was issued at the request of the parties.

The first hearing date was held on July 26, 2022. The District was represented by [REDACTED], and the Parents were represented by [REDACTED]. The District conceded Prong I of the Burlington/Carter test (T:24). The Parents introduced Exhibits A-O into evidence without objection. The District did not present any evidence or witnesses or raise any defenses (T:23-24). A second and final order of extension was granted.

The hearing resumed on September 6, 2022. The District was again represented by [REDACTED]. The Parents were represented by [REDACTED] and Ms. [REDACTED] AND [REDACTED]. The Parent testified and presented one witness from the private school. The District did not conduct any cross-examination of the witnesses or introduce any rebuttal testimony. The District also waived a closing statement (T:68, 83, 86-87). The Parents’ attorney made an oral closing statement on the record. The Parents are seeking reimbursement for that part of the tuition paid by them and direct payment to the private school for the tuition due and owing. Along with conceding Prong I, the District stated that it was not taking a position regarding the appropriateness of the unilateral placement (T:27).

FINDINGS OF FACT

The Student is a [REDACTED] year old female who was unilaterally placed at the private school by the Parents for the 2021-22 school year. The Student has been classified as a student with an intellectual disability^[1] by the District’s Committee on Special Education (CSE). She is a kind-hearted, conscientious student with deficits in expressive, receptive and pragmatic language, executive functioning, social emotional functioning, fine motor and visual motor skills and all academic areas (T:45-46, Exs. H, I and K).

The Student began receiving services through Early Intervention (EI) before the age of 1 based upon delays in all of her milestones (T:75). For grades kindergarten up until fourth grade, she attended a 12:1:1 bilingual [REDACTED] program in [REDACTED]. From fourth grade through eighth grade, she attended [REDACTED]. She has attended the current private school from 2019 through June of 2022 (T:75-77). The District has settled with the Parents every year since 2013 (T:82).

The CSE met in May of 2021 and recommended a bilingual [REDACTED] 12:1:1 program. In July of 2021, the Parent visited the District’s selected school (T:80). The Parent disagreed with the program and placement and sent a letter to the CSE on July 16, 2021 outlining her disagreement. The Parents’ attorney also sent a letter on or about August 17, 2021 (T:81; Exs. B and C). The District did not respond to either letter, and the Parents initiated the impartial hearing (T:81).

During the 2021-22 school year, the Student was in a classroom at the private school with 5 students, 1 teacher and 2 teaching assistants. The students were grouped according to their academic levels (T:46-47). Two of the classroom subject teachers were certified in special education and one had 15 years of experience (T:48-49). The private school drafted an educational plan with goals for the 2021-22 school year based upon prior year’s reports and skill-based testing. For reading, the private school utilized Fountas and Pinnell and for math, teacher assessments were derived from State-approved texts (T:51, see Ex. G). Her weekly schedule included reading comprehension and fluency, vocabulary, writing, spelling, math, science, history/social studies, computer, pre-vocational skills, organizational skills and related services (Ex. D).

At the beginning of the year, the Student was reading at a Fountas and Pinnell level O, mid-third grade. At the end of the year, she was reading at a level Q, end of third grade (T:52,57, 71). At the beginning of the year in math, she was working on a second grade level, and the private school decided to focus on functional life skills. She learned how to use a calculator independently (T:52-53,55). In writing, she began writing with nouns and verbs, more details and connecting sentences (T:58). Her counselor and teacher worked on her rigidity, and by the end of the year she was much more flexible in her thinking which helped both with her social interactions and learning (T:59). The private school also exposed her to vocational training in the school office and a short course in hairstyling (T:61-62). Finally, with regard to related services, she received occupational therapy two times per week, speech language therapy three times per week and counseling three times per week (Ex. H, I and K).

LEGAL STANDARDS

The Individuals with Disabilities Education Act (IDEA) provides that children with disabilities are entitled to a FAPE (20 U.S.C. § 1400 [d][1][A]). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written IEP (34 C.F.R. § 300.13). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances” Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988 (2017). If a procedural violation has occurred, relief is warranted only if the procedural violation affected the student's right to a FAPE. 8 NYCRR §200.5[4]; J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 (2d Cir. 2000).

In New York State, school districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement or payment for services for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement (NYS Educ. Law § 4404(1)(c)). (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School Dist. Four v. Carter, 510 US 7 [1993]). In addition, in order to receive tuition reimbursement, the equities must weigh in favor of the parent.

Since the District in this case has conceded the First Prong of the Burlington/Carter test and has failed to demonstrate it offered the Student a FAPE, the burden shifts to the Parents to prove that the services provided by the private school are appropriate to meet the Student’s special education needs and that the equities weigh in the Parents’ favor.

In order to meet their burden, the Parents must establish, by a preponderance of the evidence, that the unilateral placement provided “educational instruction specifically designed to meet the unique needs of the student” (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 [2d. Cir. 2007]. However, the private school placement “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements” (Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d. Cr. 2006]. The private placement need not provide certified special education teachers or an IEP. Parental placements are not subject to the same mainstreaming requirements as a school district placement. The private school placement must be reasonably calculated to enable the child to receive educational benefits, and must be likely to produce progress, not regression.

The standard to apply is whether "[the] unilateral private placement... provides educational instruction specifically designed to meet the unique needs of a handicapped child" Gagliardo, 489 F.3d at 115):

No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. 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. Gagliardo. 489 F.3d at 112 (quoting Frank G, 459 F.3d at 364-65).

Finally, equitable factors must weigh in the favor of the parents in order to qualify for an award of tuition reimbursement.

DECISION

Based upon a thorough review of the testimony and evidence as outlined above and lack of any challenge to the evidence by the District, I find that the District failed to meet its burden that it offered the Student a FAPE for the 2021-22 school year, and the Parents have met their burden of demonstrating that the private school provided the Student with specific instruction to address her special education needs and enabled her to make meaningful educational progress commensurate with her educational disability/classification. Although the record is sparse, and no District IEP or testing was introduced into evidence^[2], the Parents’ evidence set forth a plan for meeting the Student’s needs. The uncontroverted testimony was that she made progress in the private school program. That progress was commensurate with her significant needs and delays.

Turning to the equities, the record evidence indicates that the equities generally weigh in the favor of the Parents. They timely advised the District of their dissatisfaction with its failure to offer an appropriate program and placement for the 2021-22 school year and of their intent to seek tuition reimbursement (Parent Exhibits B and C). I do, however, find that the amount of tuition should be reduced based upon the amount of time the Student spent in prayer/bible studies at the private school. That time equals approximately 1/10th of her school week, and as such I am reducing the award by 10 percent.

Based upon a thorough review of the record and for all the foregoing reasons, the Parents have met their burden and are entitled to tuition reimbursement in the amount of $1,400 (Parent Exhibits L and M). The Parent signed an agreement with the private school on September 1, 2021 for the 2021-22 school year (Ex. L). The Parent agreed to be financially responsible for such services should the District not fund the services. The Parents submitted into evidence in support of direct funding of the services the Parents’ 2020 tax return (Ex. O). The family has four children. The total income reflected on the joint return is [REDACTED]. The total amount owed the private school for the 2021-22 school year is $78,560. Where parents “lack the financial resources to ‘front’ the costs of private school tuition, and in the rare instances where a private school is willing to enroll the student and take the risk that the parents will not be able to pay tuition costs – or will take years to do so- parents who satisfy Burlington factors have a right to retroactive direct tuition payment relief” (Mr. and Mrs. A. v. New York City Dept. of Educ., 769 F.Supp. 2d 403,428 [SDNY 2011]. Based upon the evidence presented, the Parents do not have the financial resources to fully fund the tuition. A 10 percent reduction in the tuition equates to $70,704, minus the $1,400 paid by the Parents is $69,304.

ORDER

IT IS HEREBY ORDERED that the District shall reimburse the Parents for tuition paid to the [REDACTED] for the 2021-22 school year within thirty (30) days in the amount of one thousand four hundred dollars ($1,400); and it is further

ORDERED that the District shall directly pay to the [REDACTED] within thirty (30) days of the date of this decision sixty nine thousand three hundred and four dollars ($69,304).

Dated: September 19, 2022

______________________________

LISA S. RUSK

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.

INDEX OF EXHIBITS

Date Description Pages

A 01/05/2022 Impartial Hearing Request 4

B 07/16/2021 Letter from Parent to CSE 7 and Email Confirmation 3

C 08/17/2021 Ten Day Notice Letter and Email Confirmation 4

D 2021-2022 Daily Schedule 1

E 2021-2022 Program Description 2

F 2021-2022 Attendance Record 1

G 2021-2022 [REDACTED] Educational Plan 16

H February 2022 Teacher Progress Report 4

I February 2022 Speech Progress Report 1

J February 2022 Counseling Progress Report 1

K February 2022 Occupational Therapy Progress Report 1

L 2021-2022 Enrollment Contract 3

M 03/23/2022 Affidavit of Payment 1

N 2021-2022 Proof of Payment 7

O 2020 U.S. Individual Income Tax Return 2

Footnotes

[1] See 8 NYCRR 200.1(zz)(7) – significantly subaverage general intellectual functioning, existing concurrently with deficits in adaptive behavior and manifested during the developmental period, that adversely affects a student’s educational performance.

[2] Responsibility for such deficiency lies with the District (see Application of a Student with a Disability, Appeal No. 21-194 at pg. 17).