NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
NAMES AND TITLES OF PERSONS WHO APPEARED
MAY 16, 2022
For the Student:
REDACTED Parent Attorney
For the Department of Education:
REDACTED DOE Representative, CSE [REDACTED]
NAMES AND TITLES OF PERSONS WHO APPEARED
MAY 25, 2022
For the Student:
REDACTED Parent Attorney
For the Department of Education:
REDACTED DOE Representative, CSE [REDACTED]
NAMES AND TITLES OF PERSONS WHO APPEARED
JUNE 23, 2022
For the Student:
REDACTED Parent Attorney
For the Department of Education:
REDACTED DOE Representative, CSE [REDACTED]
NAMES AND TITLES OF PERSONS WHO APPEARED
JULY 18, 2022
For the Student:
REDACTED Parent Attorney
For the Department of Education:
REDACTED DOE Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED
AUGUST 16, 2022
For the Student:
REDACTED Parent Attorney
For the Department of Education:
REDACTED DOE Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED
SEPTEMBER 30, 2022
For the Student:
REDACTED Parent Attorney
REDACTED Parent Attorney/Legal Assistant
For the Department of Education:
REDACTED DOE Attorney
REDACTED Special Ed. Teacher, REDACTED
NAMES AND TITLES OF PERSONS WHO APPEARED
OCTOBER 25, 2022
For the Student:
REDACTED Parent Attorney
For the Department of Education:
REDACTED DOE Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED
NOVEMBER 16, 2022
For the Student:
REDACTED Parent Attorney
For the Department of Education:
REDACTED DOE Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED
JANUARY 9 2023
For the Student:
REDACTED Parent Attorney
REDACTED Parent/Mother
REDACTED Founder and Director, REDACTED
For the Department of Education:
REDACTED DOE Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED
FEBRUARY 23, 2023
For the Student:
REDACTED Parent Attorney
For the Department of Education:
REDACTED DOE Attorney
INTRODUCTION
On May 2, 2022, New York City Department of Education (DOE) appointed me to act as the impartial hearing officer (IHO) in a case brought under the Federal Individuals with Disabilities Education Act (IDEA) [20 USC §1415(f)(3)] ("IDEA") by the parent (Parent) of REDACTED (REDACTED) for the school year 2021/22. The Parent requested the hearing by filing an impartial hearing request with DOE on or about January 10, 2022. The DPC is carried under New York City ("NYC") Case No: 223580. The impartial hearing was held over a series of dates to complete the record on February 23, 2023. The timelines have also been extended to allow the parties opportunity to fully prepare, secure witnesses and obtain transcripts. The record officially closed on March 29, 2023. A list of persons who appeared at the hearing and the documents entered into evidence is annexed hereto.
BACKGROUND
REDACTED is a student known to the DOE as a student with a disability and classified with "Speech or Language Impairment" (Exhibits 2 and D). Parent alleges REDACTED presents with significant deficits and that his processing speed is severely below his peers and falls in the 2nd percentile (Exhibit A). On 03/15/21, the DOE convened an IEP meeting to develop an educational program for REDACTED for the 2021/22 school year and recommended a 12:1 Special Class ELA -10 periods per week; a 12:1 Special Class Math -7 periods per week; a 12:1 Special Class Social Studies -5 periods per week; a 12:1+1 Special Class Sciences -4 periods per week; along with related services of Occupational Therapy (3x30, 1:1); Speech Language Therapy (3x30, 1:1); and Physical Therapy (3x30, 1:1) – all services recommended on a 12-month basis (Exhibits 2 and D). Thereafter, parents received a School Location Letter, dated 05/21/21, for REDACTED (Exhibit 4). Parents alerted the DOE of their concerns with the proposed placement and advised that he would be enrolled at REDACTED (REDACTED) if no appropriate program was created (Exhibit C). Lacking a response, the parents proceeded to place REDACTED at REDACTED and filed a DPC seeking reimbursement and direct payment for the tuition for the entirety of the 2021/22 school along with reimbursement and direct payment for all related services mandated on the IEP dated 03/15/21 for the entire 2021/22 school year (Exhibits 1 and A).
DOE CASE
At hearing in their opening statement, the DOE contended the District offered REDACTED a free and appropriate public education (FAPE) for the 2021/22 school year through the development of an appropriate IEP dated 03/15/21 and the offer of an appropriate placement. The DOE presented the Parent bears the burden of proof as to the appropriateness of the unilateral placement and contended Parent would not be able to meet said burden, and further presented that the equities favor the District (T @ 36).
In an effort to support their position, the DOE submitted a documentary exhibit package consisting of twelve pieces of evidence (Exhibits 1-12), and presented one witnesses, REDACTED, Special Education Teacher at the recommended placement.
PARENT CASE
The Parents alleged that for the 2021/22 school year, the most recent program and placement constitute a denial of FAPE, specifically: the IEP minimizes the extent of REDACTED's delays as the annual goals fail to adequately address his processing delays; the IEP fails to list specific services of methodologies to properly address his auditory processing delays; and the proposed placement is inappropriate (Exhibits 1 and A).
In an effort to support their position, Parents submitted a documentary exhibit package consisting of fourteen pieces of evidence (Exhibits A-N) and presented two witnesses: REDACTED, Director at REDACTED and REDACTED, REDACTED's mother.
FINDINGS OF FACT AND DECISION
The Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) was enacted with the primary purpose to ensure that students with disabilities have available to them a free and appropriate public education (FAPE) (20 U.S.C. § 1400[d][1][A]; see Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]; Bd. of Educ. v. Rowley, 458 S. Ct. 176, 179-81, 200-01 [1982]; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [2d Cir. 2006]). It is clear that the legislative intent of 20 US Code Section 1412 of the IDEA is to provide a FAPE to all children with disabilities so that these individuals may ultimately lead productive independent lives as adults, to the maximum extent possible (20 U.S.C. Sx 1400[d][1][A]; see Mrs. W v. Tirozzi, 832 F.2d 748 [2nd Cir. 1987]. A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (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). An IEP is designed as a "written statement" that addresses the educational needs of a child with a disability (20 U.S.C. § 1401[14]; 34 C.F.R. § 300.22; 8 NYCRR 200.1[y]). At the beginning of each school year, a school district is required to have an IEP in effect "for each child with a disability in its jurisdiction" (20 U.S.C. § 1414[d][2]; 34 C.F.R. § 300.323[a]; see also Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 194 [2d Cir. 2005] (finding the district fulfilled its legal obligations by providing the IEP before the first day of school). The student's recommended program must also be provided in the least restrictive environment (LRE) (34 C.F.R. § 300.114[a]; 8 NYCRR 200.6[A][1]). A FAPE is offered to a student when the board of education (a) complied with the procedural requirements set forth in the IDEA, and (b) 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. at 176, 206, 207 [1982]). The IDEA directs that, in general, a decision by an impartial hearing officer or state review officer must be made on substantive grounds based on a determination of whether or not the child received a FAPE (20 U.S.C. § 1415[f][3][E][i]). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a FAPE to the child, or (c) caused a deprivation of educational benefits to the child (20 U.S.C. § 1415[f][3][E][ii]; see 8 NYCRR 2005[j][4][ii]). The IDEA mandates that a student with a disability be provided with a FAPE tailored to meet his unique needs and one that is "reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances." Endrew F. v. Douglas Cty. Sch. Dist., 580 U.S. ___, 137 S.Ct.988, 999 (2017). A focus on the particular child is at the core of the IDEA. Endrew F., 137 S.Ct. at 999. Under 20 U.S.C. Section 1414(d)(3)(A), the IDEA mandates an IEP team to consider a child's strengths, weaknesses and deficiencies, as well as the results of the most recent evaluations of the child together with developmental and functional needs of the child. In order to determine the student's requirements and needs, the team must review and consider evaluations, assessment and information provided by the child's parents, teachers and service providers and thereon determine the type of program required for the child. A board of education may be required to pay for educational services obtained for a child by the child's parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim. (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; see also Frank R. and Dianne R. v. Bd. of Educ. of Hyde Park,459 F.3d 356 [2d Cir. 2006], cert denied, Board of Educ. of Hyde Park Cent. School Dist. v. Frank R.,2007 WL 2982269 [Oct. 15, 2007]. The case at hand is a tuition reimbursement case and is therefore governed by the holding of the U.S. Supreme Court in Burlington School Comm. v. Dept of Education (471 U.S. 359 [1985]). That case set forth a three-prong test for determining if tuition reimbursement is warranted:
(1) were the services offered by the school district inadequate or inappropriate;
(2) where the services selected by the parents appropriate; and
(3) do equitable considerations support the parents' claim. Recently enacted state legislation puts the burden of proof for the first prong on the school district and for the second prong on the parent (Chap. 583 of Laws of 2007).
Prong I:
An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the child's needs, establishes annual goals and short-term instructional objectives which are related to the child's educational deficits, and provides for the use of appropriate special education services to address the child's special education needs. Application of a Child with a Disability, Appeal No 93-12; Application of a Child with a Disability, Appeal No 93-9; Application of a Child with a Handicapping Condition, Appeal No 92-7; Matter of Handicapped Child, 22 Ed Dept Rep 487, March 11, 1983.
In the instant matter, the DOE bears the burden of presentation and persuasion in the allegations raised in the DPC. Herein, the DOE proclaims that the DOE's exhibits, together with REDACTED's testimony, suffices to meet the District's Prong I burden that a FAPE was provided to REDACTED (T @ 141-142). While the DOE submitted documentary evidence (Exhibits 1-12) and presented REDACTED – a special education teacher with the DOE, that single witness conceded not having an independent recollection of the IEP meeting or familiarity with REDACTED. When asked if appropriate to hold IEP review meetings without any personal knowledge of the child and only based on review of documents and records, REDACTED testified: "Well, normally I would have more of an interaction with the child, but due to COVID, when they did the evaluations, I wasn't on -- they did -- when they did the observations, I wasn't able to join" (T @ 78-79). REDACTED proceeded to testify she had no recollection of the IEP meeting (T @ 44); she could not independently recall if she participated in the IEP meeting (T @ 43); she never observed REDACTED and could not recall any communications with anyone who had observed him (T @ 43); she had no recollection of the Parent voicing any concern about the District's program or if any team members disagreed with the program recommendation (T @ 60); she was unaware of what documents were reviewed in preparation of the IEP meeting (T @ 47-48, 75) and had no notes from the meeting (T @ 76); she was not familiar with any of REDACTED's present levels of academic performance or the extent of his processing delays; and she conceded she did not feel confident in stating what would be an appropriate program for REDACTED as she what not familiar with him (T @ 81). As to whether she was providing testimony from recollection, REDACTED stated: "I'm reviewing the protocol that we followed within our building"(T @ 49).
In consideration of the aforementioned, the DOE failed to present a meritorious witness with knowledge of the circumstances at hand to support of its burden to show that the educational program and placement it recommended for REDACTED was appropriate or reasonably calculated to convey meaningful academic and functional benefits to REDACTED or to overcome the allegations contained in Parent's DPC.
Herein, I find the DOE failed to meet its burden of proof under the first of the three Burlington/Carter criteria for tuition reimbursement. I find the DOE failed to provide REDACTED a FAPE for the 2021/22 school year.
Prong II:
Having determined that the DOE did not offer the student a FAPE for the 2021/22 school year, I now proceed to evaluating the appropriateness of the parents' unilateral placement of the student at REDACTED. The parent's failure to select a program approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Florence County Sch Dist Four v. Carter 510 U.S. 7 [1993]). The private placement need not employ certified special education teachers, Carter, supra. The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of the unilateral placement: "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).
REDACTED is described as "a school specializing in educational and clinical needs of children with hearing loss as well as auditory processing delays……REDACTED's curriculum is uniquely designed using an auditory/oral approach to build the children's listening and processing skills in a hierarchical approach…... REDACTED embodies the relationship between a child's ability to hear, speak, learn and socialize. Our unique team of professionals is able to teach and habilitate our students because of our students have good auditory access" (Exhibit M).
REDACTED attested to being personally familiar with REDACTED and described REDACTED in great detail (Exhibit F and T @ 108-122):
"REDACTED presented with many developmental, academic, linguistic and social delays. His Full Scale IQ is borderline impaired, and his receptive and expressive language skills are severely delayed and presents with characteristics associated with auditory processing delays. REDACTED requires specialized programming and structure, without which he is inattentive to lessons and could not follow directions. He presented with severe auditory processing and sensory processing delays and required a program that catered to his delays";
"Our curriculum is well tailored to meet REDACTED's needs. We employ teachers who have specialized training to address students with auditory processing delays….Out physical building is designed to address the acoustic needs of children with hearing loss and auditory processing delays so that students who have auditory processing challenges can access the sounds properly. The signal noise ratio of our classrooms are specifically designed to benefit students with listening challenges….We employ a one of a kind evidence based literacy program called REDACTED which is geared to address the specific literacy and processing delays of students who have listening challenges"; and "REDACTED showed many significant signs of progress and benefitted from being placed in our program".
Herein, I credit the testimony of REDACTED (Exhibit F) and the documentary evidence (Exhibits F, K and N) submitted and find it establishes that the placement at REDACTED was appropriate as it provided a program and services that were directly related to REDACTED's needs and one in which he was able to make meaningful progress. The record reflects that REDACTED benefitted from the entirety of the program at REDACTED during the 2021/22 school year and that it was calculated to convey meaningful academic and functional benefits to him.
Based upon the foregoing, I find that the student made meaningful progress at REDACTED for the 2021/22 school year across the board: academically, socially and emotionally. The record reflects that REDACTED was a placement that was "specifically designed to meet the unique needs" of the student Frank G, supra and that REDACTED has made progress therein.
Prong III:
Having found REDACTED an appropriate placement, I now consider equitable considerations, the final criterion for a reimbursement award. In weighing the equities, "the critical consideration, as the Court sees it, is whether they have cooperated in good faith to attempt to develop an IEP to the maximum extent possible, Schaffer, supra.
The DOE argued the equities not favor the parents as they showed a lack of intent to enroll REDACTED at a DOE community school. Specifically, the DOE claimed parents served their notice of intent to unilaterally enroll the student in REDACTED on December 2, 2021 (Exhibit C), which provided the DOE no opportunity to cure any alleged defects and parents intended for the student to attend REDACTED all along as the escape clause had expired on November 1, 2021 (Exhibit L). REDACTED testified as to her cooperation in the IEP process (T @ 127, 135-136) She testified she spoke with REDACTED and subsequently becoming concerned that the program did not address REDACTED's unique needs and severe processing delays. She testified that she then obtained an independent neuropsychological evaluation which resulted in findings of auditory issues as well as severe expressive language, visual motor skills, attention and processing speed tests (Exhibit N) which hardened her concerns with the DOE recommended placement. While reimbursement may be reduced or denied if parents fail to provide notice of the unilateral placement in a timely manner, it is a discretionary consideration. Upon due consideration of the record herein, there is nothing to show that the parents were anything other than cooperative at all relevant times with the DOE. I do not find parent's timetable of providing notice as to their intention to unilaterally place REDACTED at REDACTED for the 2021/22 school year (Exhibit C) to warrant any reduction or denial to their request for reimbursement/funding. Further, during cross-examination of REDACTED the DOE failed to elicit any detailed testimony as to the consequences, if any, the contract escape clause would bear upon the parents.
I find (1). that the DOE failed to offer the student a FAPE for the 2021/22 school year, (2). that the unilateral placement of the student at REDACTED was appropriate (3). that the program at REDACTED is "reasonably calculated" to provide REDACTED with meaningful educational benefits and (4). that equitable considerations weighed in favor of the parents' request for reimbursement for all costs associated with the placement of the student at the REDACTED for the 2021/22 school year.
ORDER
Therefore, it is hereby ordered that The Department of Education shall directly fund/reimburse the tuition and all costs associated with the student's unilateral placement at REDACTED for the 2021/22 school year; All reimbursements and direct funding shall be supported by the presentation of appropriate documentation.
This Order shall exclude any payment that may have been previously paid by the DOE pursuant to any Pendency Agreement.
Dated: April 9, 2023
Maria R. Dispenza
MARIA R. DISPENZA, ESQ.
Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
PLEASE TAKE NOTICE
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.
DOCUMENTATION ENTERED INTO THE RECORD ON SEPTEMBER 30, 2022
1. DOE: Due Process Complaint, 01/10/22 –4pp DOE
2. IEP, 03/15/21 –25pp DOE
3. Prior Written Notice, 03/24/21 –3pp DOE
4. Prior Written Notice (with School Location Letter, 05/21/21 -5pp DOE
5. Progress Report (Academic), 1/13/21 –2pp DOE
6. Progress Report (Speech Language Therapy), 01/19/21 –3pp DOE
7. Progress Report (Physical Therapy), 01/19/21 –1pp DOE
8. Progress Report (Occupational Therapy) 01/19/21 –1pp DOE
9. Social History Update, 01/26/21 2pp DOE
10. Psychological Evaluation, 05/16/19 –4pp DOE
11. Assessment Package (excluding psychological evaluation of 05/16/19, which is included as a separate exhibit), May 2019 -30pp DOE
12. Progress Report (Speech Language Therapy), 11/23/20 -3pp DOE
DOCUMENTATION ENTERED INTO THE RECORD ON JANUARY 9, 2023
B. Parent: A. DPC, 01/10/22 – 7pp CPSE IEP, 07/22/19 – 27pp C. TDN, 12/02/21 -6pp
D. IESP, 03/15/21 – 21pp
E. Neuropsychological Evaluation, June, 2021 -15pp
F. Affidavit REDACTED, 09/28/22 -4pp
G. Affidavit of REDACTED, 06/27/22 – 2pp
H. Affidavit of REDACTED07/05/22 -1pp
I. Affidavit of REDACTED, 06/27/22 -1pp J. Provider Credentials, 02/2022, 05/2022, 06/2022 -2pp
K. Speech and Occupational Therapy Progress Reports, 20221/22 -22pp
L. School Tuition and Services Contract, -09/15/21 -1pp M. redacted Curriculum, Undated -1pp
N. Parent Affidavit, 12/01/22 -4pp
DOCUMENTATION ENTERED INTO THE RECORD ON FEBRUARY 23, 2023
IHO:
IHO-1. Parent Closing Brief, 02/22/23 -7pp