New York City Department of Education, Impartial Hearing Decision

SED Case Number: 569024 NYC Case Number: 223831

FINDINGS OF FACT AND DECISION

NYC Case Number: 223831

Student’s Name: Redacted

Date of Birth: Redacted

School: Redacted

Request date: 1/18/22

Dates of Hearing: December 13, 2022

Actual Record Closed Date: 12/19/22

Date of Decision: 12/19/22

Date of Distribution if Different than Decision Date: not applicable

Hearing Officer: Lynn B. Almeleh, Esq.

Names and Titles of Persons Who Appeared on Persons in attendance on December 13, 2022 For the Parent:

Law Offices of REDACTED

Diana Israeli, Parent

For the Department of Education

REDACTED, Esq.

Persons in Attendance December 13, 2022 For the Parent

REDACTED, Esq.

REDACTED, PARENT

Persons in Attendance December 13, 2022

For the Department of Education

REDACTED, ESQ.

Introduction and Procedural History

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parent’s Due Process Complaint (”DPC”) filed on or about January 18, 2022. Although filed on January 18, 2022, I was not appointed to hear the above-referenced matter until May 5, 2022, in violation of the Department of Education’s mandate as articulated in the Individuals with Disabilities Education Act, 20 U.R.R. Section 1415 (f)(1) and its implementing regulations, 34 C.F.R. § 300 et seq. in addition to the New York State Education Law, Educ. Law § 4404 et seq. and its implementing regulations, 8 NYCRR § 200.5 et seq. As the Department of Education was in gross violation of its IDEA mandate, it is additionally clear that a timely resolution meeting was never held, if one was held at all. There has been no motion practice in this matter and closing statements were incorporated into the hearing proceedings on December 13, 2022.

On May 16, 2022 a pre-hearing conference was held for the purpose of developing a litigation calendar and framing the issues, where possible. Status conferences were held on June 23, 2022; July 25, 2022; August 25, 2022 and September 28, 2022. When it became apparent that the parties were unable to arrive at a mutually satisfactory resolution of this matter, a hearing was scheduled for December 13, 2022. As a result, the decision date was duly extended to December 19, 2022. The is the compliance date, the date of distribution and the date of this Findings of Fact.

Specifically, the Parent asserts that the School District’s educational placement stands in violation of its mandate pursuant to 20 US Code Section 1412 [a][3] and is neither suitable nor appropriate for their child. Exhs. A. As a result, thereof, they are seeking tuition reimbursement for the 2021-2022 extended school year in furtherance of a unilateral transfer to REDACTED (hereinafter referenced as “REDACTED”), a non-public school setting.

As a corollary, the Parents have defended the educational program implemented by REDACTED and rely upon the rules and principles set forth in Florence County School District Four v. Carter by Carter, 114 S.Ct., 361 (1993); and Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359, 368 [1985]. As a corollary, the Parents contend that there are no equitable factors which militate against their right to relief.

As the hearing unfolded, testimony offered by each witness was credible and I have concluded that each witness testified truthfully in accordance with their recollections and as to the opinions they held. It should further be noted that subsequent to my appointment, the parties moved to extend the compliance date on various occasions in light of anticipated testimony, scheduling of witnesses, mutually available dates and submission of post-hearing documentation. I note that the student is classified as “Student with a Speech or Language Impairment” as that term is defined under the IDEA, 20 U.S.C. § 1400 et seq. As the hearing unfolded, testimony offered by each witness was credible and I have concluded that each witness testified truthfully in accordance with their recollections and as to the opinions they held.

A list of persons in attendance and of evidence is appended hereto.

Background

At the time of these proceedings, REDACTED was a REDACTED-year-old child, classified as a Student with a Speech or Language Impairment. She was attending first grade at REDACTED, pursuant to a unilateral transfer, and receiving all related services as articulated in the August 5, 2021 IEP. In contrast, the Department has recommended a general education program with five periods of SETTS per week. In addition, the Department has recommended individual speech and language therapy one time per week (30 minutes) to be supplemented by a (30 minute) group speech and language service. Further related services include both individual and group counseling as an adjunct to educational modifications and accommodations.

Issues

Point I: Consistent with Burlington v. Department of Education of Massachusetts, 471 U.S. 359 (1985), was the March 5, 2020 reasonably calculated to confer an educational benefit upon the child during the 2020-2021 and school year?

Point II: Was REDACTED an appropriate educational placement for the child during the 2020-2021 school year?

Point III: Are the Parents entitled to equitable relief pursuant to Burlington, supra?

Findings of Fact

The Department of Education’s Case The record is very clear in this case. The Department submitted no evidence and offered no witness testimony. A School Location Letter, undated but ostensibly printed on August 17, 2022 stands unsupported by testimony. S Exh. 7. The Department has not established the factual circumstances surrounding this letter and one can only guess if and when it was ever sent and to whom.

Given the absence of a placement witness, the Department has not established the fact that it could deliver the program articulated in its August 5, 2021 IEP. In the absence of a placement witness who could confirm the availability of services for this child, one is forced to rely upon “retrospective testimony,” i.e., testimony that certain services not listed in the IEP would have been provided to the child if he or she had attended the school district's proposed placement. In the case at bar, the Department has not even presented retrospective testimony. It has wholly ignored the issue. In view of the above and consistent with R.E. v. N.Y.C. Dep't of Educ., 15 F. Supp. 3d 421 (S.D.N.Y. 2014); Docket Nos. 11–1266–cv, 11–1474–cv, 11–655–cv., I find that the Department of Education has not met its prong one burden consistent with Burlington v. Department of Education of Massachusetts.

Moreover, even if the Department had not failed to confirm the availability of an appropriate program as recommended by the CSE, it failed to cross-examine the testimony of, the Educational Director of EDUCATIONAL ADMINISTRATOR. As such, her testimony stands unchallenged.

The Parent’s Case

Having determined that the Department of Education has not met its prong one burden, pursuant to Burlington, supra, I will now address the issue of whether REDACTED was an appropriate placement for the child during the 2021-2022 school year. Specifically, the Second Circuit has set forth a stringent standard for demonstrating the appropriateness of a parent’s unilateral placement. "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement…” (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 111 [2d Cir. 2007]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]; Frank G. v. Bd. of Educ., 459 F.3d 356 [2d Cir.2006]). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). When determining whether the parents' unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether that placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see also Gagliardo, 489 F.3d at 112). While evidence of progress at a private school is relevant, it does not itself establish that a private placement is appropriate (Gagliardo, 489 F.3d at 115 [citing Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] [stating "evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]]). A "private placement is only appropriate if it provides 'education instruction specifically designed to meet the unique needs of a handicapped child'" (Gagliardo, 489 F.3d at 115 [citing Frank G., 459 F.3d at 365 [quoting Rowley, 458 U.S. at 188-89] [emphasis added]]).

The Gagliardo Court further specified that no one factor is necessarily dispositive in determining whether a unilateral placement is appropriate. While grades, test scores and regular advancement may constitute evidence that a child is receiving educational benefit, it is clear that “the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs” will be considered in determining the appropriateness of a unilateral placement.  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; see Frank G., 459 F.3d at 364-65; see also A.D. and H.D. v. New York City Dep't of Educ., 06 Civ. 8306 [S.D.N.Y. April 21, 2008]). The private school need not employ certified special education teachers, nor have its own IEP for the student (Application of a Child with a Disability, Appeal No. 02-111).

Although it is clear that the District’s placement must comport with its LRE requirement, this is not the Parents’ burden. While parents are not held as strictly to the standard of placement in the least restrictive environment as local educational authorities are, the restrictive nature of the parental placement may be considered in determining whether the parents are entitled to an award of tuition reimbursement (J.C., 231 F.3d at 105; Application of a Child with a Disability, Appeal No. 02-111; compare Application of a Child with a Disability, Appeal No. 99-44.

Ms. EDUCATIONAL ADMINISTRATOR is licensed in both special and general education. She has previously worked as a SETSS provider and taught within self-contained classrooms. She described the small, intimate nature of REDACTED, noting that there are only five classrooms in the building which additionally houses a general education school. Students range in age from five to nine. REDACTED is designed to meet the needs of students who struggle to learn in a mainstream academic environment. Its students demonstrate cognitive delays, learning disabilities, behavioral issues and developmental delays. P Exh. R, passim. The children are presented with various learning models, such as Orton-Gillingham, Wilson Reading, Fundations and Preventing Academic Failure (hereinafter “PAF”). Each class ranges from ten to twelve students with two full-time special educators in the classroom. The School offers multi-sensory, hands-on material with visual aids and activities during instruction in order to maintain student engagement. In addition to educational services, the School provides related services such as Occupational Therapy, Physical Therapy, Speech and Language intervention and Counseling. Ms. EDUCATIONAL ADMINISTRATOR noted that there is an ongoing collaboration between the related service providers and teachers.

At the start of the 2021-2022 school year, the child’s reading skills were just emerging and a reading program specifically tailored to REDACTED’s needs was implemented. This included the use of Preventing Academic Failure (hereinafter “PAF”), a multi-sensory, phonics program which integrates reading, spelling and handwriting into one unified lesson. P Exh. R. at 2. As reading was a weakness for the child, she was placed with a small group of four students to maximize the child’s engagement and facilitate her ability to accept instruction.

Ms. EDUCATIONAL ADMINISTRATOR additionally testified that REDACTED is easily distracted and engages in on-going off-task behaviors which interfere with her ability to absorb academic materials. These considerable behaviors include elopement and bullying as a means of escaping academic demands. As a result, REDACTED’s BCBA developed a BIP along with a sensory diet, to address these dysfunctional behaviors. This BIP addressed the development of replacement behaviors and included long term goals for appropriate classroom management, ie. following classroom rules, behaving respectfully toward peers, work completion and remaining in her seat. needs consistent prompting and redirection. As these dysfunctional behaviors were increasingly responsive to stimulus control, the child developed a greater capacity to participate in her education.

As the school year progressed, Ms. EDUCATIONAL ADMINISTRATOR testified that REDACTED’s reading skills became more fluent. Specifically, she could read 11 non-phonetic sight words and sound out 25 CVC words with 80% accuracy. By the end of the year, it was estimated that REDACTED could function at an end of first grade level. Nevertheless, the child continued to struggle with comprehension and remaining on topic. In writing, the child initially lacked basic grammar skills. However, with intense instruction, the child’s writing skills strengthened and REDACTED was able to form letters, space appropriately and master spelling of some non-phonetic sight words. By the end of the year, redacted, passed both proficiency exam 1 and 2 from the PAF program.

In math, the witness observed that REDACTED struggled to perform basic addition and subtraction without maximal support. Her knowledge of coin value was inconsistent and it was clear that REDACTED had a poor understanding of 1:1 correspondence and how numbers work. Nevertheless, she has made slow and steady progress, although her reading delays compromised her ability to progress in math with word problems. By the end of the year, REDACTED was able to function on an end of first grade level in math, a significant improvement for the child.

In sum, the witness opined that REDACTED had made meaningful progress at REDACTED during the 2021-2022 school year.

I find, at the outset, that the program offered at REDACTED correlates well with the student’s functional needs, as identified by a credible witness. The child is functionally grouped in a classroom whose students reflect a similar profile. A behavior management program has been implemented and this has facilitated REDACTED’s ability to absorb academic instruction. Both the Parent and REDACTED personnel uniformly agreed that the child is making meaningful progress within the REDACTED paradigm. Its methods and curriculum are based upon empirical research and its personnel are experienced with ABA. The program is data driven, facilitating assessments of the child’s progress and areas of deficit. In this manner, the student’s goals may be individually tailored to meet her needs. All skills are taught with an understanding that no skill is truly meaningful until it can generalize home.

Since the implementation of a BIP, many of the child’s challenging behaviors have become more manageable and the child is now available for learning.

During the 2021-2022 school year, REDACTED continued to receive her mandated related services as articulated in the August 5, 2021 IEP. Given the above, I believe REDACTED was an appropriate placement for A.R. during the 2021-2022 school year.

Prong three of Burlington provides that equitable considerations may be considered when fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M.C. v. Voluntown, 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]). With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; see S.W. v. New York City Dep't of Educ., 646 F. Supp. 2d 346, 362-64 [S.D.N.Y. 2009]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181, at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 2006 WL 2335140 [2d Cir. Aug. 9, 2006]; Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-61 [S.D.N.Y. 2005]; see also Voluntown, 226 F.3d at n.9; Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001]; Application of the Dep't of Educ., Appeal No. 07-079; Application of the Dep't of Educ., Appeal No. 07-032).

In furtherance thereof, the IDEA permits the denial or reduction of reimbursement when parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1]). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools" (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]). Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision (Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G. v. Bd. of Educ., 459 F.3d 356, 376 [2d Cir. 2006]; Voluntown, 226 F.3d at 68; Lauren V. v. Colonial Sch. Dist.; 2007 WL 3085854, at * 13 [E.D. Pa. Oct. 22, 2007]).

Finally, the evidence indicates that the Parent participated willingly in her daughter’s CSE convenes and communicated at length about her concerns. To her credit, she did so in the absence of hostility and negativism. The Parent authorized assessments and willingly exchanged reports and evaluations from REDACTED. By letters dated August 18, 2021 and October 13, 2021 Ms. I. provided the District with a 10-day written notice, memorializing her dissatisfaction with the District’s program. P Exh. B,C. Although the Department received notice of the Parent’s concerns, there was no evidence that it attempted to resolve her issues. Under these circumstances, I see no factors which would militate against the Parent’s equitable right to recovery.

Conclusions of Law

The Department of Education has not met its burden of providing REDACTED with a FAPE, consistent with Florence County School District Four v. Carter by Carter, 114 S.Ct., 361 (1993); and Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359, 368 [1985]. In contrast, the Parent has established both prongs two and three, referent to the cases cited, supra.

Order

Based upon the above Findings of Fact and conclusions of Law, it is hereby ordered:

Within forty-five (45) days of the date of this Order, upon the Parent’s submission of a duly executed Affidavit of Attendance, and consistent with Connors v. Mills, 34 F.Supp.2nd 795 (N.D.N.Y. 1998), the Department shall make direct payment of all tuition expenses incurred by REDACTED during the 2021-2022 school year to the REDACTED Hebrew Academy. This amount shall represent the Department of Education’s total liability pursuant to the Parent’s Due Process Complaint dated January 18, 2022.

SO ORDERED

Dated: December 19, 2022

Lynn B. Almeleh, Esq.

_____________________________________

New York State Certified 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.