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Special Education Law
DECISIONParent PrevailedIHO Case No. 225007

New York City Department of Education, Impartial Hearing Decision

November 29, 2022·Jean Marie Brescia·New York City Department of Education

NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.

CASE NUMBER: 225007

FINDINGS OF FACT AND DECISION

Case Number: 225007

Student’s Name: REDACTED

REDACTED District: New York City Department of Education Hearing Requested by: Parent Request Date/Date Complaint Filed: March 9, 2022

Date(s) of Hearing: June 8, 2022

June 30, 2022

July 26, 2022

September 7, 2022

September 29, 2022

October 24, 2022

Actual Record Closed Date: November 15, 2022

Date of Decision: November 29, 2022

Date of Distribution if Different than Decision Date: N/A

Hearing Officer: Jean Marie Brescia, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON June 8, 2022

For the Student:

REDACTED, Esq.

For the Department of Education:

None

NAMES AND TITLES OF PERSONS WHO APPEARED ON June 30, 2022

For the Student:

REDACTED, Esq.

For the Department of Education:

None

NAMES AND TITLES OF PERSONS WHO APPEARED ON July 26, 2022

For the Student:

REDACTED, Esq.

For the Department of Education:

REDACTED, District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON September 7, 2022

For the Student:

REDACTED, Esq.

For the Department of Education:

None

NAMES AND TITLES OF PERSONS WHO APPEARED ON September 29, 2022

For the Student:

REDACTED, Esq.

REDACTED R, Parent

For the Department of Education:

REDACTED, District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON October 24, 2022

For the Student:

REDACTED, Esq.

REDACTED, Parent

REDACTED, Director, Upper Division of REDACTED

For the Department of Education:

REDACTED, District Representative

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 March 9, 2022. Ex. A.[1] On May 27, 2022, I was appointed by the New York City Department of Education to hear this matter after the appointment of another hearing officer was rescinded. Parent seeks reimbursement for tuition for REDACTED’s placement at The REDACTED (“REDACTED”) for the 2021-2022 REDACTED year.

I conducted a prehearing conference on June 8, 2022. Parent’s counsel appeared. The Department did not appear. I continued the case to June 30, 2022, and again Parent’s counsel appeared, and the Department did not appear. On July 26, 2022, Parent’s counsel appeared; REDACTED appeared for the Department; opening statements were presented. The hearing was continued to September 7 for the Department to present its case.

On September 7, 2022, Parent’s counsel appeared; the Department did not appear. I warned the Department, via email, that it was in danger of default if it failed to appear. IHO Ex. I. The hearing was rescheduled for September 29.

On September 29, Parent appeared with counsel; REDACTED appeared on behalf of the Department. The Department was in default as a result of its previous failures to appear (Tr. 32; IHO Ex. I), the Department declined the opportunity to present an argument as to why it should not have been held in default, and the Department rested. Tr. 33. On behalf of the Parent, Parent’s counsel offered documents in evidence. I admitted in evidence Parent’s Exhibits A through J.[2] REDACTED’s mother testified.

On October 24, a witness from REDACTED testified, and the parties presented closing statements on the record.

The parties requested extensions of the compliance date, and written Orders of Extension were issued on June 8, July 26, September 7, September 29 and October 24, 2022. The reasons for granting the extensions are set forth in the Orders.

The record was closed on November 15, 2022.

JURISDICTION

The due process hearing was held, and a decision in this matter is now 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.

Parent consented to the hearing being conducted via videoconference and to the electronic transmission of this Findings of Fact and Decision.

ISSUES

Parent requests reimbursement for tuition she paid to REDACTED for REDACTED’s enrollment at REDACTED for the 2021-2022 REDACTED year. At the hearing, the Department did not defend its IEP or proposed placement. The issues to be resolved are:

  • • Was REDACTED an appropriate placement for REDACTED for the 2021-2022 REDACTED year?
  • • Does the balance of the equities favor REDACTED’s mother?

FINDINGS OF FACT

  • • REDACTED is a now REDACTED-year-old girl who is eligible to receive special education and services pursuant to the IDEA. Ex. A at 1.
  • • REDACTED has been diagnosed with a REDACTED and a REDACTED, with impairments in REDACTED. Ex. J at 2, 10.
  • • REDACTED’s REDACTED impacts her academics, and she struggles with comprehension, particularly higher-level comprehension skills. She also struggles with recall and language processing. Tr. 70-71, 88; Ex. J at 1-2, 8, 10.
  • • As a preschool student, REDACTED’s teachers “flagged” her for REDACTED and a “REDACTED” and suggested that she undergo a neuropsychological evaluation. Tr. 37-38.
  • • The initial neuropsychological evaluation revealed that REDACTED experienced “organizational weaknesses that impacted her receptive and expressive language abilities” and struggled with developing letter and number recognition. Ex. J at 1.
  • • An initial speech evaluation revealed that REDACTED had difficulties with language processing. Ex. J at 1-2.
  • • REDACTED was enrolled in REDACTED for kindergarten and has attended REDACTED since that time. Tr.54.
  • • REDACTED is a REDACTED for children with language-based learning disabilities. Tr. 70; Ex. H.
  • • REDACTED’s schedule at REDACTED included Advisory, math, reading, science, study skills, writing, physical education, service learning/Transition, history, music, Town Hall, literature circles, Student Advocacy, and, at the end of each day, planner check and check out. Ex. D.
  • • REDACTED provided REDACTED with small classes: Advisory, eight students; reading, seven students; writing, five students; math, two students; history, ten students; and science, eight students. Tr. 71.
  • • Reading and writing were taught be two teachers and an assistant teacher; history is taught by a head teacher with a speech/language therapist. The rest of REDACTED’s classes were taught by one teacher. Tr. 72.
  • • The REDACTED day started with Advisory, which focuses on social-emotional learning, study skills, and executive functioning. Tr. 72; Ex. I at 1.
  • • At the beginning of the 2021-2022 REDACTED year, REDACTED was still working on reading decoding and fluency, and higher-level comprehension skills, such as inferencing. The “focus” of her instruction during the 2021-2022 REDACTED year included comprehension, vocabulary and fluency. Teachers utilized upper-level Orton-Gillingham strategies and spelling program and “visualizing and verbalizing program” to supplement teaching of comprehension skills. Tr. 73-74; Ex. I at 2-3.
  • • During the 2021-2022, REDACTED’s reading accuracy, fluency and comprehension improved. Tr. 75; Ex. I at 3-4.
  • • In math, REDACTED’s teachers focused on fractions, decimals, place value, basic algebra concepts, math fact automaticity, and using a calculator. Tr. 75-76; Ex. I at 10.
  • • REDACTED made progress in understanding math concepts and applying math skills to math problem solving. Tr. 76; Ex. I at 10-11.
  • • In writing, her teachers focused on developing the complexity of her sentences, writing paragraphs, and essay writing, and utilizing outlining and note-taking strategies. Tr. 77, 84-85; Ex. I at 6-8.
  • • REDACTED improved her sentence, paragraph and essay writing and learning to incorporate relevant information and vocabulary in her writing. Tr. 77; Ex. I at 8-9.
  • • Through Advisory, REDACTED improved her long-term planning skills, understanding of and ability to follow directions, sequencing of directions, and self-advocacy skills. Tr. 77; Ex. I at 1.
  • • The director of REDACTED’s program at REDACTED, who is a New York State certified special education teacher and REDACTED building leader, explained that REDACTED, due to her specific language and learning challenges, needed the intensive and individualized support provided in the small classes at REDACTED. Tr. 69, 80, 81-82; see also Ex. J at 11.
  • • REDACTED’s mother observed that, during the 2021-2022 REDACTED year, REDACTED made progress in expressive language, sequencing, homework completion, Tr. 44-45.
  • • REDACTED’s mother has attended IEP meetings for REDACTED, including the most recent meeting conducted on September 23, 2020. Tr. 39, 56-57.
  • • REDACTED’s mother provided the CSE with all private evaluations she had secured for REDACTED. Tr. 56-57.
  • • The CSE recommended that REDACTED attend an ICT class for a portion of the REDACTED day and general education classes for the remainder of the REDACTED day. REDACTED’s mother was concerned that these classes would be too large for REDACTED and that REDACTED would not be supported at all in the general education classes. Tr. 39-41; Ex. B.
  • • The Department did not offer a school placement for REDACTED for the 2021-2022 REDACTED year. Tr. 39; Ex. B.
  • • REDACTED’s mother entered into an enrollment contract with REDACTED for the 2021-2022 REDACTED year. The contract obligates REDACTED’s mother to pay the entirety of the tuition amount of $72,725.00. Ex. C.
  • • REDACTED’s mother has paid the entire amount of the 2021-2022 REDACTED year tuition. Exs. E, F.
  • • REDACTED’s mother provided a “ten-day” notice to the Department on August 23, 2021. Ex. B.

CONCLUSIONS OF LAW

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 REDACTED selected by the parents is not approved as a REDACTED 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 REDACTED 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 REDACTED 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 REDACTED 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 REDACTED 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 REDACTED 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 avail itself of the opportunity to 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 her to make progress given her 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 mother bears 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 Sch. Dist., 459 F. 3d 356, 364 (2d Cir. 2006), cert. denied, 128 S.Ct. 169 (2007). To meet this burden, REDACTED’s mother must show that the educational services provided at REDACTED addressed REDACTED's identified special education needs. See C.F. v. New York City Dep’t of Educ., 746 F.3d 68, 82 (2d Cir. 2014); 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 Sch. Dist., 09-CV-859 (S.D.N.Y Sept. 30, 2010); Application of the Bd. of City REDACTED 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 specific and identified special education needs were addressed. In particular, REDACTED addressed REDACTED’s need for small classes in which she received the teacher supports that she required in order to address her language-based challenges so she could learn. The record is clear as to the extent of the individualized special education and other supports that REDACTED personnel provided to REDACTED. See paragraphs 9 through 13, 15, 17 and 20, above.

REDACTED made progress at REDACTED during the 2021-2022 REDACTED year. See paragraphs 14, 16, 18-21, above. At REDACTED, REDACTED has made progress across the range of her challenges, clearly demonstrating that REDACTED is an appropriate special education placement for her. 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 was appropriate for REDACTED for the 2021-2022 REDACTED year. As a result, REDACTED’s parent prevails with respect to the second Burlington/Carter criterion.

With respect to the third Burlington criterion, whether equitable considerations support REDACTED’s parent’s claims, the evidence establishes that REDACTED’s mother cooperated with the CSE by attending CSE meetings, providing evaluative material to the CSE, communicating with Department personnel about her concerns, 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 REDACTED district, attending CSE meetings, and providing notice to the REDACTED district).

Equitable considerations thus favor the award of relief to REDACTED’s mother. As a result, REDACTED’s mother prevails with respect to the third Burlington/Carter criterion.

ORDER

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

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

SO ORDERED.

DATED: November 29, 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 Public-REDACTED 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

PARENT EXHIBITS

Letter

Date

Name of Document

# of Pages

A 3/8/2022 Impartial Hearing Request 3

B 8/23/2021 Parent Ten Day Notice Letter 1

C 2/8/2021 REDACTED Contract 7

D 2021-2022 REDACTED Class Schedule 1

E 2/14/2022 REDACTED Affidavit 1

F 2021-2022 Parent Proof of Payment 9

G 2021-2022 REDACTED Attendance 1 H undated REDACTED Program Description

1

I

2021-2022

REDACTED Report Card

19

J

9/15/2021

Neuropsychological Evaluation

12

IHO EXHIBIT

I 9/7/22 Email from IHO to DOE re Default 1 page

Footnotes

[1] Exhibits shall be referred to as follows: Parent’s exhibits are identified with letters; Department exhibits are identified with numbers; and Impartial Hearing Officer’s Exhibits are labelled as “IHO.”.

[2] A more detailed list of the admitted exhibits is attached to this Decision as “Documentation Entered Into the Record.”