New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 569672 - NYC: 224319

FINDINGS OF FACT AND DECISION

Case Number: 224319

Student’s Name: REDACTED

Date of Birth: REDACTED

District: REDACTED

Region: REDACTED

Hearing Requested By: Parents

Dates of Hearing: May 26, 2022

June 29, 2022

July 25, 2022

September 14, 2022

October 12, 2022

Actual Record Close Date: November 9, 2022

Hearing Officer: Maria R. Dispenza, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED MAY 26, 2022

For the Student:

REDACTED, Esq. Parent Attorney

For the Department of Education:

REDACTED DOE District IHRO Representative

NAMES AND TITLES OF PERSONS WHO APPEARED JUNE 29, 2022

For the Student:

REDACTED, Esq. Parent Attorney

REDACTED Legal Intern

For the Department of Education:

REDACTED DOE District IHRO Representative

NAMES AND TITLES OF PERSONS WHO APPEARED JULY 25, 2022

For the Student:

REDACTED, Esq. Parent Attorney

For the Department of Education:

REDACTED DOE District IHRO Representative

NAMES AND TITLES OF PERSONS WHO APPEARED SEPTEMBER 14, 2022

For the Student:

REDACTED, Esq. Parent Attorney

REDACTED Parent/Mother

REDACTED Legal Fellow

REDACTED Director-The REDACTED

For the Department of Education:

REDACTED DOE District IHRO Representative

NAMES AND TITLES OF PERSONS WHO APPEARED OCTOBER 12, 2022

For the Student:

REDACTED, Esq. Parent Attorney

REDACTED, Esq. Parent Attorney

REDACTED Parent/Mother

REDACTED Accounts Receivables @ REDACTED

For the Department of Education:

REDACTED DOE District IHRO Representative

INTRODUCTION

On May 12, 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 the DOE on or about February 4, 2022. The DPC is carried under New York City (“NYC”) . The impartial hearing was held over a series of dates, completing the hearing process on October 12, 2022. The timelines have also been extended to allow the parties opportunity to receive a determination on the DOE investigation of the matter, to fully prepare, secure witnesses and obtain transcripts. The record officially closed on November 9, 2022. A list of persons who appeared at the hearing and the documents entered into evidence is annexed hereto.

BACKGROUND AND POSITIONS OF THE PARTIES

REDACTED is a student with a disability known to the CSE. He is diagnosed with attention deficit hyperactivity disorder (ADHD), a language disorder, and specific learning disabilities in reading, writing, and mathematics (Exhibit A). The DOE first evaluated REDACTED in preschool, due to his classroom teacher’s reports of hyperactivity and difficulties with attention and focus. The DOE recommended him speech and language therapy and a paraprofessional. Thereafter, REDACTED attended REDACTED from kindergarten through the 5th grade and despite his longstanding difficulties and lack of academic progress, the DOE mostly maintained his IEP recommendation unchanged over the course of those years, basically recommending a12:1:1 classroom setting year after year. However, by the end of 5th grade REDACTED was only performing at 2nd grade levels academically. According to a neuropsychological evaluation conducted on 09/14/20, REDACTED’s significant delays in reading and writing presented that he necessitated a placement in a small classroom within a specialized school for students with language disorders and without students with disruptive or externalizing behaviors, where intensive, individualized, evidence-based remediation could be provided on a daily basis (Exhibit K). Parent alleges a failure by the DOE to provide a free and appropriate public education (FAPE) for the 2019/20, 2020/21, and 2021/22 school years, claiming a failure to provide a substantively and procedurally appropriate IEP and a failure to provide a substantively appropriate placement for REDACTED for the aforementioned school years. The Parent alleges giving notice to the DOE of its failure to provide REDACTED with an appropriate program and placement and of their intent to unilaterally place REDACTED at REDACTED for the 2021/22 school year and seek funding (Exhibit B). As a remedy for the DOE’s failure to provide REDACTED a FAPE, the Parent filed a DPC seeking: (1). tuition costs for REDACTED to attend REDACTED for the 2021/22 school year, including all related services, supplementary aids and services, and all books and materials; (2). door-to-door roundtrip transportation to and from REDACTED or in the alternative prospective payment to the vendor of transportation services, and/or reimbursement to the Parent for any transportation expenses that the Parent incurred; (3). the creation of an appropriate IEP for REDACTED that includes a non-public school, evidence-based remediation, and a 12-month program among other appropriate supports and services; (4). provision of an occupational therapy evaluation; (5). provision of compensatory tutoring, to be provided by REDACTED at a rate of $150 per hour, or another provider of evidence-based, multi-sensory, individual tutoring at market rate; and (6). provision to REDACTED and his mother transportation or transportation funding so that Parent can accompany REDACTED to and from tutoring sessions. At the hearing, the Parties represented reaching agreement on all requested relief except for tuition costs at REDACTED and transportation for the 2021/2022 school year (T @ 25). As such, the hearing is limited to tuition costs and transportation as parent waived all other relief initially sought in the DPC (T @ 25).

In an effort to support their position, the parent presented a documentary exhibit package consisting of nineteen pieces of evidence (Exhibits A-T -Exhibit N Omitted), which included affidavits of direct testimony of REDACTED - Orton Gillingham Reading Specialist (Exhibit O), REDACTED - Pediatric Neuropsychologist and Assistant Director of Clinical Operations at the REDACTED at REDACTED (Exhibit P), REDACTED - REDACTED’s mother (Exhibit Q), and REDACTED - Director of the REDACTED (Exhibit R), all available for cross-examination. Parent also presented REDACTED from Accounts Receivables at REDACTED as a live witness.

The DOE conceded Prong I, failed to submit any documentary evidence or present any witnesses, and failed to present an opening statement. The DOE only opted to cross-examine parent witnesses, REDACTED and REDACTED.

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:

In the instant matter, the DOE bears the burden of presentation and persuasion in all allegations raised in the DPC. 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.

Herein, the DOE conceded Prong I and therefore no further analysis is required.

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).

As per the recommendations of the neuropsychological evaluation of September 14, 2020 (Exhibit K), REDACTED required a specialized program:

“given the constellation of his combined learning difficulties – including academic skills that have fallen well below grade expectation, despite the provision of special education services – REDACTED should attend a specialized education setting that will provide an adequate learning environment and will assist him in being able to make meaningful academic progress.” In the case at hand, the DOE did not provide attempt to rationalize its recommended program and/or placement for REDACTED, as year after year REDACTED continued to fall below grade levels. The DOE neither disputed tuition at REDACTED nor REDACTED’s entitlement to the tuition (T @ 38). More so, the evidence and testimony presented by the parent supports that REDACTED was an appropriate placement for REDACTED during the 2021/22 school year. Herein, I credit the evidence (Exhibits G-J and O-R) submitted by Parent 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. I find the evidence to substantiate the program at REDACTED offered a small supportive environment with intensive 1:1 and small group instruction, multi-sensory instruction, modifications and behavioral supports required by REDACTED to make progress. Related services are provided and incorporated into the academic program (Exhibit F). The only objection the DOE raised was to a tuition adjustment referenced by REDACTED contract (Exhibits D and S) not yet approved and thus indetermined (T @ 38). In order to address the issue parent presented REDACTED from accounts receivables at REDACTED. REDACTED testified the REDACTED Commissioner of Education sets the tuition rate based upon an annual audit (T @ 61-62) and that the final audited tuition rate for the 2021/22 school year is due to be announced in January 2023 (T @ 62). She further testified that according to the Administrative Code REDACTED is only permitted to charge no more than 10% above the tentative tuition rate reflected in the contract, a

Albeit it be more (T @62-63). During cross-examination REDACTED expressly acquiesced as to the maximum amount REDACTED could possibly be charged and held responsible for:

MS. REDACTED: So based on the – your testimony on direct, you stated that the parent will not be responsible for more than ten percent. So is it fair to say that ten -- a ten percent increase of $46,713.60, ten percent of that would be the $4,671,036; is that your understanding of what a ten --

MS. REDACTED: (Interposing) Yeah.

MS. REDACTED: Okay. (T @ 66)

Based upon the foregoing, I therefore find that REDACTED was an appropriate placement for REDACTED for the 2021/22 school year. The record reflects, without contest from the DOE, that REDACTED provided a rich supportive environment that correlated well with REDACTED, that the curriculum was specifically tailored to meet REDACTED’s needs and that he received a highly individualized instruction that enabled him to make appropriate progress. 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. There is nothing in the record to show that the parents were anything other than cooperative. The DOE did not present any evidence or testimony regarding the equity considerations for the 2021/22 school year. All indications are that the Parent cooperated with the DOE and did not interfere in any way with the DOE’s obligation to provide a FAPE for the Student for the 2021/22 school year. REDACTED’s Parents timely put the DOE on notice of REDACTED’s unilateral placement and their intent to seek reimbursement (Exhibit B).

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 was “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 REDACTED for the 2021/22 school year.

Based upon the foregoing,

ORDER

It is hereby ordered that

• • Within thirty (30) days of receipt of this Order, the Department of Education shall directly fund/reimburse the cost of the student's tuition at REDACTED for the 2021/22 school year in the amount of $46,713.60 and further fund/reimburse the tuition adjustment for the 2021/22 school year yet to be determined by the REDACTED Commissioner of Education not to exceed $4,671.36. All payments shall be supported by the presentation of appropriate documentation; and
• • The DOE shall reimburse/fund all transportation costs incurred by the parent for the 2021/22 school year. All payments shall be supported by the presentation of appropriate documentation.

Dated: November 17, 2022

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 14, 2022

Parent:

• • Impartial Hearing Request, 06/17/22 -11pp
• • 10-Day Notice, 08/25/21 -4pp
• • REDACTED Contract and Invoice, 07/29/21 -2pp
• • REDACTED Tuition Affidavit 2020/21 SY,, 08/17/22 -1pp
• • REDACTED Final Attendance 2020/21 SY, 08/17/22 -1pp
• • REDACTED 2020/21 SY Class Schedule, Undated -1pp
• • REDACTED 2020/21 speech, counseling & academic teacher reports, Undated -7pp
• • REDACTED December 2021 Progress Report, Undated -18pp
• • REDACTED March 2022 Progress Report,, Undated – 17pp
• • REDACTED June 2022 Progress Report,, Undated -16pp
• • Neuropsychological Evaluation, 09/14/20 – 18pp
• • Email Chain with DOE re: transportation, 09/07/21 -1pp
• • Email to DOE re: school location letter, 08/25/21 -1pp
• • Direct Testimony Affidavit of REDACTED, 09/13/22 -5pp
• • Direct Testimony Affidavit of REDACTED, 9/13/22-7pp
• • Direct Testimony Affidavit of REDACTED, 09/14/22 -7pp
• • Direct Testimony Affidavit of REDACTED, 09/14/22 -6pp DOCUMENTATION ENTERED INTO THE RECORD ON October 12, 2022 Parent:
• • REDACTED 2021-2022 contract, 10/14/21 -3pp
• • REDACTED 6A:23A-18.3 Fiscal Accountability, Efficiency and Budgeting Procedures, Undated – 16pp