New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 569679 - NYC: 224326

FINDINGS OF FACT AND DECISION

Case Number: 224326

Student’s Name: REDACTED

Hearing Requested By: Parent

Dates of Hearing: May 19, 2022

June 16, 2022

July 19, 2022

Actual Record Close Date: August 1, 2022

Hearing Officer: Jean Marie Brescia, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

May 19, 2022 For the Parent:

REDACTED, Esq.

For the Department:

None

June 16, 2022 For the Parent:

REDACTED, Esq.

For the Department:

REDACTED, District Representative

July 19, 2022 For the Parent:

REDACTED, Esq.

REDACTED, Parent

REDACTED, Head Teacher, REDACTED School For the Department:

None

On May 12, 2022, I was designated as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1415(f), in the matter of REDACTED after the appointment of another hearing officer was rescinded. REDACTED’s parent (“Parent”) requested the hearing on February 7, 2022, challenging the Department of Education’s failure to offer REDACTED a free appropriate public education for the 2021-2022 school year and seeking reimbursement for REDACTED’s tuition at the REDACTED School (“REDACTED”), a non-public special education school. Ex. A at 1-2.

A pre-hearing conference was conducted on May 19, 2022. The Department did not appear at the pre-hearing conference. Tr. 2. Counsel for REDACTED’s parent clarified the relief requested. Tr. 2-3. The hearing on the merits was conducted on June 16 and July 19, 2022. At the June 16 hearing date, the District Representative stated that the Department was not presenting a case. Tr. 11. The Department did not appear at the July 19 hearing date.

The parties made applications on the record for extensions of the compliance date. The applications were granted by written Orders of Extension dated May 19 and June 16, 2022. The record closed on August 1, 2022, upon the hearing officer’s review of the transcript of the last day of hearing, and the Actual Record Close Date is August 1, 2022.

Appended to the record are the names of the persons who appeared at the hearing and a list of the documents entered into evidence.

Findings of Fact

• • REDACTED is a REDACTED-year-old boy whose disability is classified, pursuant to the IDEA, as speech-language impairment. Exs. A, L at ⁋ 5.
• • REDACTED presents with a significant speech and language disorder that impacts his academic, social and language development. He has difficulties processing, retrieving and organizing language. Receptive, expressive and pragmatic language are challenging for him. Ex. L at ⁋ 4.
• • During the 2021-2022 school year, REDACTED attended REDACTED. REDACTED is a nonpublic special education school serving students with language-based learning disabilities. Exs. K, L at ⁋ 5, 8.
• • When REDACTED entered a mainstream preschool program, his significant language difficulties became apparent, and he was evaluated for eligibility for special education. Tr. 38-39.
• • REDACTED received special education services as a preschool student and has attended REDACTED since entering the school’s early childhood program for the 2014-2015 school year. Ex. L at ⁋⁋ 5-6.
• • REDACTED’s parents attended a March 11, 2021 IEP meeting for REDACTED. Exs. B, C. At the meeting, they shared their concerns about REDACTED’s educational needs and the programming that the Department was recommending for REDACTED. Exs. B, C, L at ⁋⁋ 7-8..
• • REDACTED’s parents submitted a ten-day notice letter to the Department on August 23, 2022. Ex. B.
• • All REDACTED teachers are trained in Orton-Gillingham, which is “a structured, sequential, systematic approach to reading, which involves multisensory instruction and a strong emphasis on phonics and morphology.” Ex. J at ⁋⁋ 7-8.
• • REDACTED’s homeroom class consisted of eleven students and two teachers. REDACTED’s math and reading classes each included one teacher and six students. Tr. 34; Ex. J at ⁋ 11.
• • Julien benefitted from small classes because he needs teacher support and check ins to ensure that he is understanding the material. Tr. 34.
• • REDACTED’s challenges with expressive language and word retrieval impact his learning. He also has difficulties with executive functioning. He needs time to process and figure out what he wants to communicate, both orally and in writing. He needs, and his teachers provide, scaffolding and structure to assist him in learning to take notes, plan and outline his written work. Tr. 33-34; Ex. J at ⁋⁋ 19, 20, 22.
• • REDACTED needs, and his teachers provide, direct, multisensory and repetitive instruction with integrated language support, teacher support to follow directions, and material presented through multiple modalities (text, visual, videos and project-based learning). Exs. H, J at ⁋⁋ 21-22.
• • Due to his above-described needs, REDACTED’s teachers at REDACTED provide him with individualized supports, including breaking down language, scaffolding, chunking, repeated directions, and additional time to process requests and tasks with both repetition and clarifications from teachers. Ex. J at ⁋ 22.
• • REDACTED’s teachers at REDACTED developed individualized goals for REDACTED for the 2021-2022 school year. His teachers monitored his progress on these goals, which revealed that REDACTED made progress in academics, language and social skills. Exs. H, J at ⁋ 23.
• • REDACTED’s reading group focused on reading comprehension, spelling and speech/grammar utilizing the Orton-Gillingham approach with instruction provided in a multisensory manner. REDACTED benefitted from the structure of Orton-Gillingham. REDACTED made progress in reading: his reading accuracy and fluency improved, he could decode more advance words, improved comprehension skills, and he was reading more challenging texts and understanding them. Ex. J at ⁋⁋ 26-28.
• • In writing, REDACTED’s teachers utilized the REDACTED Writing Skills program to work on sentence and paragraph writing, with a focus on organization. REDACTED benefited from the structured writing process, with significant teacher support, and improved his sentence writing and gained more independence in his writing and editing process. Ex. J at ⁋ 30.
• • In math, REDACTED’s teachers utilized Singapore Math, which includes structured lessons, manipulative and guides to math comprehension. REDACTED needed, and his teachers provided, individualized instruction, and he improved his computational skills and understanding of math concepts. Ex. J at ⁋⁋ 31-32.
• • REDACTED’s classroom schedule includes “Reset,” where the students refocus themselves to be ready for the next class; REDACTED needs this time “to calm and resent his body,” which helps him refocus himself. Tr. 29.
• • The schedule also includes a period for the students to learn self-advocacy, which involves learning when one needs help and how to advocate for oneself and one’s learning. Tr. 29-30.
• • REDACTED also benefits from the “read aloud” period because it involves listening comprehension and expressive language (by answering questions about the text). REDACTED has become more confident in his ability to express his comprehension. Tr. 30-31.
• • REDACTED also needs the “organization” period at the end of the school day for his teacher to model organization and executive functioning skills for him. Tr. 32.
• • In speech therapy, REDACTED worked on listening comprehension and developing higher-level language skills. His language abilities improved: his written responses were more developed and organized, and he was able to communicate his thoughts more effectively. Exs. I, J at ⁋ 39.
• • REDACTED made consistent progress throughout the school year: improved skills in reading, math and writing and improved language and executive functioning skills that permitted him to better participate in classroom learning. Exs. H, J at ⁋⁋ 41-42.
• • REDACTED’s parents entered into an enrollment contract with REDACTED obligating them to pay the total 2021-2022 tuition of $72,725.00. Ex. D. REDACTED’s parents have paid this tuition in its entirety. Exs. E, L at ⁋ 14.

Decision

A board of education may be required to pay for education services obtained for a child by the child's parents if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. School Committee of the Town of Burlington v. Department of Education, 471 U.S. 359 (1985). The fact that the school selected by the parents is not approved as a school for children with disabilities by the State Education Department (as in the instant case) is not dispositive of the parents’ claim for tuition reimbursement. Florence County School District v. Carter, 510 U.S. 7 (1993).

The central purposes of the IDEA are to ensure: (1) that students with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living and (2) that the rights of students with disabilities and their parents are protected. 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 U.S. 49, 51 (2005); Board of Education v. Rowley, 458 U.S. 176, 179-181 (1982). The first step in the inquiry is to determine whether the school district offered a free appropriate public education to the student. See, e.g., Application of a Child with a Disability, Appeal No. 07-008; Application of a Child with a Disability, Appeal No. 06-121. A free appropriate public education includes special education and related services designed to meet the student’s individual needs, provided in conformity with a written IEP. See 20 U.S.C. §1401(9); 20 U.S.C. §1414(d).

A school district offers a student a free appropriate public education when (1) it complies with the procedural requirements of the IDEA and (2) the IEP developed by the district is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 999 (2017); see also Rowley, 458 U.S. at 207; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 (2d Cir. 2014); R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012). A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” Rowley, 458 U.S. at 203. The school district also must ensure that “[t]o the maximum extent appropriate, children with disabilities are educated with children who are not disabled” that is, in the student’s least restrictive environment. 20 U.S.C. § 1412(a)(5)(A); 8 NYCRR 200.1(cc), 200.6(a)(1); see M.W. ex rel. S.W. v. New York City Dep’t of Educ., 725 F.3d 131,143 (2d Cir. 2013).

The particular educational needs of a student with a disability and the services required to meet the needs must be set forth in a written IEP. Honig v. Doe, 484 U.S. 305, 311 (1988); 20 U.S.C. § 1401(9)(D); see 20 U.S.C. § 1414(d); 34 C.P.R. § 300.320. An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs. 34 C.F.R. 300.320 (a)(1); 8 N.Y.C.R.R. 200.4(d)(2). The CSE then must establish annual goals related to the identified needs of the student and provide for the use of appropriate special education services in the IEP. 8 N.Y.C.R.R. 200.4(d)(2)(iii), (v).

In New York, the school district bears the burden of proof in an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. N.Y. Educ. Law § 4404(1)(c); see R.E., 694 F.3d at 184-85. In this case, the DOE did not present testimony or documentary evidence with respect to its provision of FAPE to REDACTED for the 2021-2022 school year. Since the Department did not offer any testimony or documentary evidence to explain how its IEP for REDACTED was “reasonably calculated” to permit him to make progress given his unique circumstances, the Department did not carry its burden of proof and cannot prevail on the first “prong” of the Burlington/Carter test.

REDACTED’s parents bear the burden of proof concerning the appropriateness of REDACTED for REDACTED. See, e.g., Frank G. v. Board of Education of the Hyde Park Central School District, 459 F. 3d 356, 364 (2d Cir. 2006), cert. denied, 128 S.Ct. 169 (2007). To meet this burden, the parent must show that the educational services provided at REDACTED addressed REDACTED's identified special education needs. See C.F., 74;6 F.3d at 82; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 837 (2d Cir. 2014); R.E., 694 F.3d at 187; G.B. and L.B. on behalf of N.B. v. Tuxedo Union Free School District, 09-CV-859 (S.D.N.Y Sept. 30, 2010); Application of the Bd. of City School District of the City of New York, Appeal No. 95-79, at pp. 6-7; Application of a Child with a Disability, Appeal No. 96-1. The Second Circuit instructs that:

No one factor is necessarily dispositive in determining whether parents’ unilateral placement is “reasonably calculated to enable the child to receive education benefits.” Rowley, 458 U.S. at 207. 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.”

Frank G., 459 F. 3d at 364 (emphasis added); also Bd. of Educ. of the Wappingers Cent. Sch. Dist. v. D.M., 831 F. App’x 29, 78 IDELR 2 (2d Cir. 2020) (Summary Order).

Furthermore, as the Second Circuit held in R.E.: “parents may provide evidence that the child made actual progress at their chosen private placement to support the adequacy of that placement.” 694 F.3d at 187 n.3.

The preponderance of the evidence establishes that REDACTED provided REDACTED with an educational environment in which her constellation of identified special education needs were addressed. In particular, REDACTED addressed REDACTED’s need for small classes in which he received the structured and multisensory instruction and teacher supports that he required in order to address his language-based and executive functioning needs so he could learn. The record is clear as to the extent of the individualized special education, related services and supports that REDACTED personnel provided to REDACTED. See paragraphs 9 through 22 above.

REDACTED has made progress at REDACTED during the current 2021-2022 school year. See paragraphs 14-15, 16-17 and 22-23 above. At REDACTED, REDACTED has made progress across the range of his challenges, clearly demonstrating that REDACTED is an appropriate special education placement for him. See, e.g., T.K. v. New York City Dep’t of Educ., 810 F.3d 869, 878 (2d Cir. 2016) (unilateral program appropriate when it meets child’s needs and child makes progress); F.B. v. New York City Dep’t of Educ., 132 F. Supp. 3d 522, 555-56 (S.D.N.Y. 2015) (unilateral program appropriate when it provided instruction and related services individualized to child’s needs and which resulted in progress).

Considering the “totality of the circumstances” as required by the Second Circuit in Frank G., the evidence supports a finding that the program at REDACTED is appropriate for REDACTED for the 2021-2022 12-month school year. As a result, REDACTED’s parents prevail with respect to the second Burlington/Carter criterion.

With respect to the third Burlington criterion, whether equitable considerations support REDACTED’s parents’ claims, the evidence establishes that REDACTED’s parents cooperated with the CSE by attending CSE meetings, communicating with Department personnel, and providing the requisite statutory notice. See, e.g., R.E., 694 F.3d at 185, 195; M.F. v. New York City Dep’t of Educ., 2013 U.S. Dist. LEXIS 79181 at *34-*35 (S.D.N.Y. June 4, 2013) (“equitable considerations” include parental cooperation with the school district, attending CSE meetings, and providing notice to the school district). Equitable considerations favor the award of relief to REDACTED’s parent. As a result, REDACTED’s parents prevail with respect to the third Burlington/Carter criterion.

Therefore, for all the above reasons, it is ORDERED that:

The Department of Education shall reimburse REDACTED’s parents for REDACTED’s placement at the REDACTED School for the 2021-2022 school year. The amount of reimbursement shall not exceed $72,725.00 the 2021-2022 school year.

Dated: August 14, 2022

______________________________

JEAN MARIE BRESCIA, ESQ.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the 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

Letter

Date

Parent’s Exhibits

Name of Document

# of Pages

A

2/5/22

DPC

3

B 8/23/21 Parent letter with receipt 2

C 10/18/21 Parent letter with receipt 2

D 21-22 Contract 7

E 1/24/22 Payment affidavit 1

F 21-22 Parental proof of payment 6

G 21-22 Schedule 1

H 6/15/22 School progress report 23

I 21-22 Speech progress report 2

J 7/12/22 School testimony affidavit 6

K N/A Program description 1

L 7/14/22 Parent testimony affidavit 3