New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 569353 - NYC: 224099

FINDINGS OF FACT AND DECISION

Case Number: 224099

Student’s Name:1 STUDENT

Date of Birth: REDACTED

School District: New York City Department of Education Hearing Requested by: PARENT(S)

Request Date/Date Complaint Filed: January 28, 2022 Date(s) of Hearing: June 1, 2022

Actual Record Closed Date: October 17, 2022 Date of Decision: October 31, 2022

Date of Distribution if Different than Decision Date: Hearing Officer: Amy Lynne Itzla, Esq.

1 Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 1, 2022

For the Student:

REDACTED, Esq., Attorney

Parent

REDACTED, Head Teacher, REDACTED School

For the Department of Education:

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 28, 2022. (Exhibit P- A)2 The record does not contain any response from the Department of Education to the allegations contained in the DPC. The undersigned Impartial Hearing Officer was appointed to this matter on January 28, 2022, by the New York City Department of Education.

A hearing was held on June 1, 2022. It was a closed hearing, conducted by video/teleconference, with the presence of a court reporter to create a written transcript. The Parent was represented by REDACTED, Esq. The DOE did not appear to participate in the hearing. Parent exhibits A through J were entered into evidence.3 The record was closed on June 1, 2022.

A status conference was held on April 26, 2022. REDACTED, Esq. appeared for the Parent. The DOE did not appear. The Parent requested that a hearing date be scheduled and it was scheduled for June 1, 2022. The DOE was notified by several means that the hearing date was scheduled, which are further discussed below.

In scheduling the hearing date, and throughout this proceeding, this Impartial Hearing Officer granted multiple requests by the parties for extensions of the 45-day timeline for the due process hearing, pursuant to 34 C.F.R. §300.515(a). The requests were granted, in accordance with 34 C.F.R. §300.515(c), and after full consideration of the cumulative impact of the following factors: 1) the impact on the child’s educational interest or well-being which might be occasioned by the delay; 2) the need of a party for additional time to prepare or present the party’s position at the hearing in accordance with the requirements of due process; 3) any financial or other detrimental consequences likely to be suffered by a party in the event of delay; and, 4) whether there has already been a delay in the proceeding through the actions of one of the parties. [8 NYCCR §200.5(j)(5)(ii)]

JURISDICTION

The due process hearing was held and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.

BACKGROUND

STUDENT was 10 years old at the beginning of the 2020-2021 school year. She had been classified by the Department of Education (“DOE”), through its Committee on Special Education (“CSE”), as a student with a disability.

The Parent had sent a letter to the CSE, dated August 25, 2020, providing notice of the Parent’s intention to place STUDENT at the REDACTED School (“SCHOOL”) for the 2020-2021 school year, and to seek tuition reimbursement from the DOE. (Exhibit P-B)

The Parent stated, in part, that: “The CSE recommended an ICT class. This is far too large a class for her. Her difficulties affect all of her academic subjects. STUDENT needs a small class with individualized attention. She needs teacher attention and individualized instruction. She needs to be with students at her academic level and cannot be with children who have behavior issues. The IEP does not accurately reflect her academic, social and emotional issues, and the goals are not specific enough to address her needs.” The Parent also informed the DOE that she was unable to reach anyone at REDACTED, the placement offered to STUDENT

By letter dated January 28, 2022, the Parent requested an impartial hearing asserting that the DOE failed to offer STUDENT a Free Appropriate Public Education (“FAPE”) for the 2020-2021 school year. (Exhibit P-A) The Parent explained that she was seeking tuition reimbursement for the placement at SCHOOL for the 2020-2021 school year.

POSITIONS OF THE PARTIES THE DOE’S CASE The DOE did not appear to participate in the hearing on June 1, 2022. The DOE had also failed to appear for the scheduled status conference that preceded the hearing, held on April 26, 2022. The DOE’s representative had confirmed the DOE’s availability for the status conference of April 26, 2022, by email dated March 1, 2022.

Immediately following that status conference, on April 26, 2022, this Hearing Officer sent an email to two of the DOE’s representatives, including the one who had participated in the scheduling of the status conference, stating, in part, that: “This case was scheduled for a status conference to be held today, April 26, 2022, at 1:30 p.m.

(see below as well as the Impartial Hearing Office’s calendar). There was no appearance for the DOE. As a courtesy, I am notifying the DOE that, during the status conference, Parent’s counsel requested that a hearing date be scheduled for this case. A hearing date has been scheduled for June 1, 2022, at 2:00 p.m. In addition, on May 4, 2022, the DOE received the written transcript of the status conference which contained the scheduling of the June 1, 2022, hearing date. By email dated May 17, 2022, the New York City Impartial Hearing Office sent further notice to the parties of the June 1, 2022, hearing date.

THE PARENT’S CASE The Parent presented the testimony of two witnesses: REDACTED, head teacher at SCHOOL, and PARENT, STUDENT’s mother.

REDACTED, a head teacher at SCHOOL, described her educational background, her six years at SCHOOL, and her responsibilities at SCHOOL as a head teacher. (T. 13-15) She described SCHOOL as an independent special education school for “bright students with language-based learning disabilities.” Classes range from eleven to twelve students with two special education teachers and an individualized curriculum is provided. (T. 16) Ms. REDACTED was STUDENT’s homeroom teacher during the 2020-2021 school year and also taught her math in a small group. She described STUDENT as a motivated and social student. She explained that STUDENT was “diagnosed with a specific learning disorder with impairment in reading and written expression, also, a developmental coordination disorder as well as a specific learning disorder with impairment in mathematics. And she was also diagnosed with attention deficit hyperactivity disorder due to her inattention.” (T. 16-17) Ms. REDACTED described the challenges STUDENT exhibited at the beginning of the 2020-2021 school year, her needs in all areas of reading, writing, math, and language, the methods use to instruct her and how she benefited as a result. (T. 17-25)

Ms. REDACTED stated that STUDENT’s classroom had twelve students, herself as the head teacher, one assistant teacher, and one support teacher. Through the class’s “pod model,” STUDENT received daily small group reading instruction, in a group of five students with two teachers, and small group math instruction, in a group of two students with one teacher. She also received push-in occupational therapy to work on visual perception skills, organizational skills, and keyboarding practice. She received push-in speech and language services three times a week and in a small group once a week as a pull-out service to address her receptive and expressive language needs. Ms. REDACTED further described the strategies used in working with STUDENT in all academic areas of need and how they benefited STUDENT (T. 25-31)

Ms. REDACTED described the regular team meetings she had with all those involved in STUDENT’s educational program. Meetings were held with her speech and language pathologist, occupational therapist, the educational director, the reading specialist, the math specialist, and her co-curricular teachers. (T. 31-32) When asked if

STUDENT made progress during the 2020-2021 school year, Ms. REDACTED testified that, “Yes, I would definitely say, especially since it was STUDENT’s first year of middle school, she did make progress.“Ms. REDACTED provided specific examples from different academic areas, to demonstrate the progress made. She explained that progress is measured using formal and informal assessments, daily observations, progress reports, and report cards. (T. 32- 34) Ms. REDACTED expressed her opinion that STUDENT would “get lost, feel overwhelmed, and be confused in the setting” of a 24 to 30-person Integrated Co- Teaching (“ICT”) class. She stated that STUDENT “really needs a full-time special education setting with integrated language support. And she really requires a small class that has a language immersive approach with positive role models with students who are equally bright with similar academic needs as STUDENT” (T. 35)

PARENT, STUDENT’s mother stated that STUDENT has “always been a super social, happy-go- lucky kind of kid.” With regard to her educational issues, she explained that, “It became clear, early on, she had some learning issues, but she was okay to be mainstream. And then around third grade, she was having problems in the class setting, with a bigger class of children. Socially was never an issue. It was aways the academics. And she just started to kind of get lost. So we actually went to the DOE, and we were open to public school. And we just wanted to see if they could find something appropriate. And then, unfortunately, at that point, they didn’t.” REDACTED stated that she obtained a neuropsychological evaluation for STUDENT (Exhibit P-J) During a CSE meeting on May 27, 2020, to develop an Individualized Education Program (“IEP”) for STUDENT for the 2020-2021 school year, the CSE recommended an ICT class. Ms. REDACTED informed the CSE that she would “absolutely consider it but our concern is that it’s just going to be too large - the class size.” Around mid-July, REDACTED received the DOE’s placement for STUDENT She stated that she called the school a few times and she either got no answer or she reached an answering machine on which she left a couple of messages. She did not receive any response to her messages. In her letter of August 25, 2020, she explained to the CSE, in part, that she was unable to reach the school and gave her opinion about the recommendation. (Exhibit P-B) She did not receive any response to the letter. (T. 36-40)

REDACTED testified that STUDENT attended SCHOOL, in person, from the first day of the 2020-2021 school year. REDACTED described STUDENT’s progress: “Oh, I saw huge progress last year down to she wasn’t asking me for really much help at all. When I was reading with her, she was actually starting to comprehend and make inferences, which is huge. That’s very, very big for her. I also thought, even with her math and the fast facts and things like that, common sense kind of words, problem kind of questions that I would always ask her when on the road, when we were driving, like, how many exits, or, those kinds of questions, she really started to come through and think about the answer and come up with it in term of calculations.” REDACTED stated that the small group setting and the teachers helped tremendously. She added that, at the end of the year, “she actually printed out her paper to show me because she was so proud of her work…I’ve never seen her that proud and confident and happy.” REDACTED stated that, had the DOE offered a public school placement that could have met STUDENT’s needs, she would have considered it. She had stated this at the CSE meeting and tried to communicate with the school placement offered. (T. 40-42)

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The central purpose of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) is to ensure that students with disabilities have available to them a Free Appropriate Public Education (20 U.S.C. § 1400[d][1][A]; see Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]; Bd. of Educ. v. Rowley, 458 U.S. 176, 179-81, 200-01 [1982]; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [2d Cir. 2006]). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a written IEP (20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.17[d]; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.320). A FAPE is offered to a student when: (a) the board of education complies 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 (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).

A board of education may be required to reimburse parents for their expenditures for private educational services, obtained for a student by his or her 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 (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Cerra v. Pawling Cent.

Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). In Burlington, the Court found that Congress intended retroactive reimbursement to parents, by school officials, as an available remedy in a proper case under the IDEA (id.). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along, and would have borne in the first instance had it developed a proper IEP" (Burlington, at 370-71; see Application of the Bd. of Educ., Appeal No. 05-073).

The DOE did not participate in the hearing to present a case to establish that it offered a FAPE to STUDENT for the 2020-2021 school year and, therefore, the first prong of the analysis, under the Burlington and Carter decisions, supports the Parent’s case.

The Parent has the burden of establishing the appropriateness of the program she has provided to REDACTED (Application of a Child with a Disability, Appeal No. 95-57; Application of a Child with a Disability, Appeal No. 02-093) In order to meet that burden, a parent must demonstrate that the services provided offer an educational program which meets the student’s special education needs. (Burlington, 471 U.S. at 370; Application of a Child with a Disability, Appeal No. 94-29; Frank G. v. Board of Education of Hyde Park, 459 F. 3d at 363; Gagliardo v. Arlington Cent. Sch. Dist., 489 F. 3d 105 [2d Cir. 2007]) The standard used to measure the appropriateness of the parent’s placement is “not perfection.” (M.S. ex rel S.S. v. Bd. of Ed., 231 F.3d 96 [2d Cir. 2000]) “The issue turns on whether a placement - public or private- is reasonably calculated to enable the child to receive educational benefits.” (Gagliardo, 489 F. 3d at 112) A parent’s failure to select a program approved by the state in favor of an unapproved option is not itself a bar to reimbursement. (Carter, 510 U.S. 7 [1993])

I find that the Parent has prevailed with respect to the second criterion for reimbursement under the Burlington and Carter decisions. Ms. REDACTED was directly and extremely involved with STUDENT’s educational program, as her head teacher, during the 2020-2021 school year. She has direct personal knowledge of STUDENT’s strengths, weaknesses, academic program, and the instructional and special education methods and strategies used to meet her needs. She is also familiar with the progress STUDENT made in the 2020-2021 school year while at SCHOOL. REDACTED provided testimony conveying the struggles STUDENT experienced while she was in a public school program and the ways in which the SCHOOL program was tailored to her unique needs, including the small class sizes and the level of individualized instruction and support provided. She also described the progress STUDENT made in all areas. Ms. REDACTED and REDACTED strongly assert that SCHOOL was appropriate for STUDENT for the 2020-2021 school year. These witnesses provided persuasive testimony and supporting evidence affirming the appropriateness of the placement and demonstrating that SCHOOL addressed STUDENT’s individual needs.

They established that her placement was reasonably calculated to allow her to make meaningful progress. In fact, she made meaningful progress through her attendance at SCHOOL in the 2020-2021 school year as documented in the school’s detailed “End of Year Reports” in all areas. (Exhibit P-E)

Since the DOE failed to appear for the hearing, the entirety of the Parent’s case has been unchallenged. I find that the Parent has prevailed with respect to the second criterion for reimbursement under the Burlington and Carter decisions.

The final criterion for an award of funding or reimbursement is whether the Parent’s claim is supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M. C. v.

Voluntown Bd. of Educ., 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"]). Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters" (Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]). With respect to equitable considerations, a parent may be denied reimbursement upon a finding of a failure to cooperate with the CSE in the development of an IEP or if the parent's conduct precluded the CSE's ability to develop an appropriate IEP (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 86 [3rd Cir. 1999]; see Application of the Bd. of Educ., Appeal No. 04-102; Application of the Bd. of Educ., Appeal No. 04-026). In the absence of evidence demonstrating that a parent failed to cooperate in the development of the IEP, or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a claim of reimbursement (Application of a Child with a Disability, Appeal No. 04-049).

Since the DOE failed to appear for the hearing, there were no equitable factors raised that could adversely affect the Parent’s case. The record clearly established the Parent’s continuous cooperation and communication with the DOE. There is absolutely no basis on which to reduce or modify the remedy for the Parent.

ORDER

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

• • The DOE failed to offer a FAPE to STUDENT for the 2020-2021 school year;
• • The Parent’s unilateral placement of STUDENT at the REDACTED School was appropriate for the 2020-2021 school year;
• • There are no equitable considerations which would reduce or bar an award of reimbursement for the 2020-2021 school year; and, therefore,
• • The DOE shall reimburse the Parent for the tuition paid to the REDACTED School for the 2020-2021 school year in the amount of $71,300. Payment shall be made immediately, since the Parent has already submitted proof of the contracted amount of tuition and proof of full payment. (Exhibits P-F and P-I).

SO ORDERED.

DATED: October 31, 2022

Amy Lynne Itzla, Esq. Amy Lynne Itzla Esq. 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.

APPENDIX A – REDACTION IDENTIFICATION PAGE

REDACTED

APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD PARENT EXHIBITS

Exhibit

Document

Date

Pages

A Impartial Hearing Request/Due Process Complaint 1/28/22 3

B Parent Ten-Day Notice Letter 8/25/20 1

C REDACTED Program Description Undated 1

D REDACTED Remote Learning Description 2020-2021 1

E REDACTED Report Card 2020-2021 30

F REDACTED Contact 1/27/20 6

G REDACTED Class Schedule Undated 1

H REDACTED Attendance 6/24/21 1

I REDACTED Affidavit 2/26/21 1

J

Psychological Evaluation

4/3/18

3 A more detailed list of the admitted exhibits is attached as Appendix B, “Documentation Entered Into the Record,” to this decision.

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Footnotes

[16] 2 Exhibits shall be referred to as follows: “P” for Parent’s Exhibit; “D” for District’s or Department’s Exhibits; and “IHO” for Impartial Hearing Officer’s Exhibits. Exhibits will be followed by the exhibit number and page numbers as needed and appropriate. In this case, there are only Parent’s exhibits.