New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 570865 - NYC: 225021

FINDINGS OF FACT AND DECISION

Case Number: 225021

Student’s Name: REDACTED

School 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 25, 2022

September 7, 2022

September, 28, 2022

Actual Record Closed Date: October 20, 2022

Date of Decision: November 1, 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 25, 2022

For the Student:

REDACTED, Esq.

For the Department of Education:

Dr. REDACTED, District Representative

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

For the Student:

REDACTED, Esq.

For the Department of Education:

REDACTED, District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON September 28, 2022

For the Student:

REDACTED, Esq.

REDACTED, Parent

REDACTED, Psy.D., Director of REDACTED

REDACTED, Director, Upper Division of REDACTED School

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 22, 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by the New York City Department of Education to hear this matter after the appointment of another hearing officer was rescinded.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 placement at The REDACTED School (“REDACTED”) for the 2021-2022 school 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 25, 2022, Parent’s counsel appeared; Dr. REDACTED appeared for the Department and represented that the Department was investigating the case for settlement.

On September 7, 2022, Parent’s counsel appeared; the District Representative, REDACTED, stated that she believed that the Department had not “approved” the case for settlement and that she would not be presenting an opening statement, would not be offering documents in evidence, and would not be presenting a case on behalf of the Department. Tr. 25-26. The Department rested its case. Tr. 26. On behalf of the Parent, Parent’s counsel offered documents in evidence and presented an opening statement. I admitted in evidence Parent’s Exhibits A through M.^[2]

On September 28, 2022, Parent presented witnesses, and the hearing concluded with closing statements on the record. I admitted Parent’s Exhibit N in evidence.

The parties requested extensions of the compliance date, and written Orders of Extension were issued on June 8, July 25, September 7 and September 28, 2022. The reasons for granting the extensions are set forth in the Orders.

The record was closed on October 20, 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 funding for tuition at REDACTED, reimbursement for monies paid and direct payment for tuition due and owing. 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 school year?
• • Does the balance of the equities favor REDACTED’s mother?

FINDINGS OF FACT

• • REDACTED is a now REDACTED year-old young man whose disability is classified, for the purposes of the IDEA, as. Ex. A at 1,
• • As a very young child, REDACTED experienced medical issues that impacted his motor coordination, muscle weakness and ability to communicate. He was diagnosed with REDACTED and received PROMPT speech therapy through Early Intervention, which resulted in REDACTED learning to speak. Tr. 70-71, 72; Exs. J at 1, K at 2, M.
• • When REDACTED was four years of age, he was evaluated by Dr. REDACTED, a pediatric neuropsychologist, who diagnosed REDACTED with REDACTED. Tr. 72.
• • REDACTED’s receptive and expressive language challenges impact all areas of learning. Tr. 52; see also Exs. K, L.
• • REDACTED also experiences REDACTED, REDACTED and difficulties with attention and executive functioning. Exs. J at 1, 9, K at 7, M.
• • REDACTED has attended REDACTED since first grade. Ex. J at 1.
• • During the 2021-2022 school year, REDACTED attended REDACTED’s Upper Division, for students who are twelve to fourteen years of age. Tr. 51.
• • REDACTED is a school for children with language-based learning disabilities. Tr. 51; Ex. H.
• • Dr. REDACTED has a doctorate in clinical psychology and completed a pre-doctoral residency and a post-doctoral fellowship in pediatric neuropsychology. He served as the director of pediatric psychology and neuropsychology at REDACTED for twenty years. Tr. 43-44.
• • Dr. REDACTED has been following REDACTED for approximately ten years and evaluated REDACTED, most recently, in December 2020. Tr. 44; Ex. J.
• • Dr. REDACTED reported that REDACTED is a smart, hard-working boy with a “complex learning profile” and “a myriad of significant issues in more complex language, in attention, in speed and efficiency of processing related to REDACTED, [and] some ongoing REDACTED.” Tr. 45.
• • As a result of the above challenges, REDACTED continued to require supports, including a small special education class for children with language-based learning disabilities in order to accommodate his language processing, attention and REDACTED-related needs. Tr. 45; see also Ex. M.
• • A larger classroom setting would not meet his learning needs and would “work against him due to his REDACTED and overall profile.” Tr. 45; see also Ex. M.
• • Dr. REDACTED opined that REDACTED, during the 2021-2022 school year, provided REDACTED with the supports he needed to learn and was an appropriate placement for him. Tr. 46; see also Ex. J at 9-12.
• • At REDACTED, REDACTED’s schedule for the 2021-2022 school year included Advisory, reading, math, writing, history, science, music, transition, PE, study skills and planner check/check out. Ex. D.
• • Advisory focusses on social-emotional learning, character building, developing study skills, and skill building in areas of organization, using a planner, executive functioning and homework completion. Tr. 61-62; Ex. I at 1.
• • Study skills class, for REDACTED, involved working with his teachers to develop his executive functioning skills because Tr. 62-63. REDACTED needed this class due to his attentional and language challenges. Through this class, teachers broke down directions for him so that he could process, understand and execute those directions, and develop strategies to apply to understanding and following instructions. Tr. 63. In addition, this class assisted REDACTED in developing advocacy skills and understanding his learning differences and how to seek accommodations and modifications when he needed them. Tr. 64.
• • In Transition, REDACTED worked on skills that would be needed in the real world of work, such as writing and speaking about himself, asking questions at open house-type events, and completing applications. Tr. 65.
• • The school day ends with a “planner check.” Students return to their advisory room where an advisor checks their planners to make sure they are completely filled out and they have the materials they need and to check in with students. REDACTED also used this time to help him break down longer-term assignments and make sure he was on track. Tr. 66.
• • The schedule also includes a weekly Town Hall period for presentations and performances that focus on school-related themes. Tr. 65.
• • During the 2021-2022 school year, REDACTED attended reading and writing classes of nine students with one head teacher; Tr. 52.
• • At the start of the school year, REDACTED’s reading comprehension skills were “very concrete and basic” and a fifth grade level. Tr. 52, 54.
• • REDACTED’s reading and writing classes for 2021-2022 focused on higher-level comprehension skills. Tr. 52.
• • His teachers focused specifically with REDACTED on reading texts for comprehension; his teachers utilized direct instruction, scaffolding and cueing to teach him how to annotate texts and how to look for theme, character development, symbolism and figurative language and reading fluency. Tr. 52: Ex. I at 2-3.
• • REDACTED’s reading teacher also utilized Lindamood-Bell visualizing and verbalizing techniques to develop REDACTED’s reading comprehension. Tr. 54.
• • By the end of the school year, REDACTED had gained more than a grade level in reading comprehension, to an over sixth grade level. Tr. 54.
• • In addition, his reading fluency and spelling improved. Tr. 78; Ex. I at 2-3.
• • Writing was also a challenge for REDACTED due to his language comprehension difficulties. Tr. 54. He needed to develop skills with respect to generating ideas, organizing his writing, and editing; REDACTED utilized the Writing Revolution program which addresses these skills and works specifically on sentence writing, then paragraph writing, then essay writing, all in a structured and sequential way. Tr. 54-55.
• • His REDACTED teachers taught him to use outlining to organize his writing work and provided him with cues, sentence starters, and references to use to “build” sentences. Tr. 55-56. They also worked with him on syntax and grammar. Tr. 56.
• • REDACTED’s developing writing skills were practiced in his content area classes, and he learned how to apply his writing skills in these classes. Tr. 56.
• • REDACTED made progress in writing: he improved sentence writing and more consistently wrote complex sentences; he outlined and wrote paragraphs with a topic sentence and supporting details, with teacher support; and he was able to organize and write an essay, also with teacher support. Tr. 56-57, 78; Ex. I at 3-4.
• • REDACTED’s Advisory class included eight students with one teacher. Tr. 53.
• • His math class included seven students and one teacher. Tr. 53.
• • REDACTED worked on grade level material in math, at a modified pace and with consistent “spiral” review and with teacher scaffolding and cues. Word problems were particularly difficult for REDACTED, and his math teacher provided him with direct instruction on how to approach and “decipher” such problems.” Tr. 57-58; Ex. I at 4-5.
• • REDACTED made progress in math: he improved his understanding of grade level math concepts and “did well” with pre-algebra and algebra topics. Tr. 58; Ex. I at 5..
• • Science class included eight students and one teacher. Tr. 53.
• • History class included six students and one teacher. Tr. 53.
• • REDACTED’s teachers worked with REDACTED’s speech-language therapist to assist in planning REDACTED’s lessons and met biweekly to discuss students, including REDACTED. Tr. 59-60, 80.
• • REDACTED benefited from this type of support from a speech-language therapist: such support provided REDACTED with assistance in developing skills and implementing strategies to comprehend complex language, follow multi-step directions, ask relevant and specific question, and expand his verbal and written responses. Ex. I at 7.
• • REDACTED’s small classes helped reduce REDACTED’s REDACTED in school, and REDACTED’s REDACTED was moderated during the 2021-2022 school year due to the small classes and the academic interventions and strategies of his teachers and speech therapist. Tr. 67, 77-78, 80.
• • Throughout the 2021-2022 school year, REDACTED made progress at REDACTED, including applying his reading and writing strategies and advancements in his other subject area classes. Tr. 60.
• • REDACTED also made progress in executive functioning, including planning and executing long-term assignments. Ex. I.
• • REDACTED’s mother attended all IEP meetings to which the Department invited her and considered public school placements offered to REDACTED by the Department. Tr. 73-74.
• • When the CSE recommended ICT for REDACTED for the 2021-2022 school year, REDACTED’s mother informed the CSE that she was concerned that the ICT class sizes were too large for REDACTED. Tr. 73.
• • REDACTED’s mother also contacted personnel at the school proposed by the Department for REDACTED for the 2021-2022 school year. Based upon the information she received from school personnel, she was concerned that the school was too large for REDACTED to navigate and the availability of related services for REDACTED at the school. REDACTED’s mother communicated these concerns to the Department in writing. Tr. 74-76.
• • REDACTED’s mother entered into an enrollment contract with REDACTED for the 2021-2022 school 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 $2,000.00 of the 2021-2022 school year tuition. Ex. E; see also Ex. N.
• • 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 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 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 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 his constellation of identified special education needs were addressed. In particular, REDACTED addressed REDACTED’s need for small classes in which he received the direct and structured instruction and teacher supports that he required in order to address his language-based, executive functioning and REDACTED-related needs so he could learn. The record is clear as to the extent of the individualized special education and speech-language and other supports that REDACTED personnel provided to REDACTED. See paragraphs 16 through 25, 32 through 34, and 36-40, above.

REDACTED made progress at REDACTED during the 2021-2022 school year. See paragraphs 26, 27, 31, 35, 41 and 42 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 was appropriate for REDACTED for the 2021-2022 12-month school 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, contacting personnel at the school proposed for REDACTED, 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 school district, attending CSE meetings, and providing notice to the school district).

Furthermore, although REDACTED’s mother has paid only a portion of the REDACTED tuition, the debt for the full amount of the tuition is very real. A hearing officer may, where the other requirements of Burlington and Carter permit, order prospective payment (rather than reimbursement) because: (1) such payment is permitted by Connors v. Mills, 34 F. Supp. 2d 795 (N.D.N.Y. 1998); and (2) it would be patently unfair to extend the protections granted by the United States Supreme Court in Burlington and Carter only to those disabled children whose parents happen to have the financial wherewithal to “front” the entire amount of the private school tuition and subsequently seek repayment from the school 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 fund REDACTED’s placement at the REDACTED School for the 2021-2022 school year. The amount of funding for the 2021-2022 school year shall not exceed $72,725.00. The funding shall be reimbursement to REDACTED’s mother for the amounts that she has paid to REDACTED for REDACTED’s tuition for the 2021-2022 school year, and direct payment to REDACTED for any amounts that REDACTED’s mother has not yet paid for tuition the 2021-2022 school year.

SO ORDERED.

DATED: November 1, 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-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

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 2

C 4/30/2021 REDACTED Contract 7

D 2021-2022 REDACTED Class Schedule 1

E 6/1/2022 REDACTED Affidavit 1

F 2021-2022 Parent Proof of Payment 2

G 7/7/2022 REDACTED Attendance 1 H undated REDACTED Program Description

1

I

6/22/2022

REDACTED Report Card

7

J

12/5/2020

Neuropsychological Evaluation

16

K

6/14/2021

Speech Evaluation

23

L

1/25/2021

REDACTED Evaluation

11

M

12/30/2021

NYU Evaluation

2

N

2020

Tax Returns

3

Footnotes

[1] Exhibits shall be referred to as follows: “P” for Parents’ 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.

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