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Special Education Law
DECISIONParent PrevailedIHO Case No. 225619

New York City Department of Education, Impartial Hearing Decision

August 11, 2022·Jean Marie Brescia·Representative

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

NYSED # 571685 / NYC # 225619

FINDINGS OF FACT AND DECISION

Case Number: 225619

Student’s Name: REDACTED REDACTED

Hearing Requested By: Parent

Dates of Hearing: May 4, 2022

June 24, 2022

July 1, 2022

Actual Record Close Date: August 1, 2022

Hearing Officer: Jean Marie Brescia, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

May 4, 2022 For the Parent:

REDACTED REDACTED-REDACTED, Esq.

For the Department:

None

June 24, 2022 For the Parent:

REDACTED REDACTED-REDACTED, Esq.

REDACTED REDACTED, Parent For the Department:

None

July 1, 2022 For the Parent:

REDACTED REDACTED-REDACTED, Esq.

REDACTED REDACTED, Parent

REDACTED REDACTED, Teacher, REDACTED REDACTED School For the Department:

REDACTED REDACTED, District Representative

On April 6, 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(“IDEA”), 20 U.S.C. §1415(f), in the matter of REDACTED REDACTED after the appointment of another hearing officer was rescinded. REDACTED’s parent (“Parent”) requested the hearing on April 1, 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 REDACTED School (“REDACTED”), a non-public special education school. Exs. A at 1-2.

A pre-hearing conference was conducted on May 4, 2022. Counsel for REDACTED’s parent clarified the relief requested. Tr. 2-3. The hearing on the merits was conducted on June 24 and July 1, 2022. The Department did not appear at the pre-hearing conference or on June 24 hearing date. At the July 1 hearing date, the District Representative stated that the Department was not presenting a case. Tr. 56.

Parent’s counsel made applications on the record for extensions of the compliance date. The applications were granted by written Orders of Extension dated May 4 and June 24, 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 REDACTED-year-old girl who is eligible to receive, under the IDEA, special education and services. Ex. A.[1]
  • • REDACTED struggles significantly with attention and has been diagnosed with REDACTED (“REDACTED”) and a history of delays in receptive language, expressive language, fine motor skills, and gross motor abilities. She demonstrates overall low average-range cognitive abilities on testing, and this score is impacted by her REDACTED. Ex. L at 16-18.
  • • During the 2021-2022 school year, REDACTED attended REDACTED. REDACTED is a nonpublic special education school serving students with REDACTED, learning disabilities, and speech and language delays. Exs. D, K at ⁋⁋ 2-6.
  • • Since she was a toddler, REDACTED had demonstrated delayed receptive and expressive language. Tr. 26.
  • • As a preschool student, REDACTED received speech and occupational therapies. Tr. 28-29. She struggled in the preschool setting with attention, following directions, relating to peers, and responding to instruction. Ex. L at 1-2, 4.
  • • In January 2017, when REDACTED was four years-old, her parents obtained a neuropsychological evaluation. The neuropsychologist confirmed that REDACTED experienced a speech impairment and diagnosed REDACTED. Tr. 29-30; see Ex. L at 1.
  • • REDACTED’s mother then requested an evaluation from the Department to determine REDACTED’s eligibility for special education. Tr. 30-31. The CSE convened and recommended that REDACTED attend an ICT kindergarten classroom in a public elementary school. Tr. 31.
  • • REDACTED was also evaluated by a psychologist in 2018, prior to kindergarten. Ex. L. The evaluator recommended that REDACTED attend a small, special education class with a language-enriched program and minimal distractions and which focused on improving attention, social skills, and pragmatic communication and provides proper pacing of instruction, breaking down of instruction, and scaffolded and structured instruction. Ex. L at 18-19.
  • • REDACTED’s mother placed REDACTED at REDACTED for kindergarten because she concluded, based upon REDACTED’s experience in a general education preschool classroom, that REDACTED needed a small special education class. Tr. 32.
  • • REDACTED’s mother attended a CSE meeting in July 2021. Tr. 33. The CSE again recommended that REDACTED attend an ICT class (with approximately 25 to 28 students) and receive speech and occupational therapies. Tr. 35. REDACTED’s mother informed the CSE that REDACTED would “just get lost” in a class of that size; both REDACTED’s mother and classroom teacher stated that REDACTED needed a smaller, special education class in order to make progress. Tr. 36.
  • • After the CSE meeting, REDACTED’s mother attempted to visit the school proposed by the Department, but no one at the school responded to her calls. Tr. 37.
  • • Through counsel, REDACTED’s parents submitted a ten-day notice letter to the Department on August 25, 2022. Ex. B.
  • • REDACTED continued at REDACTED for the 2021-2022 school year as a third grade student. Tr. 38.
  • • REDACTED’s classroom teacher for the 2021-2022 school year provided direct testimony by affidavit and appeared at the hearing for cross-examination. Ex. K.
  • • 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. K at ⁋⁋ 4, 5.
  • • REDACTED elementary grade-level classes include 10 to 12 students with one teacher and one assistant or co-teacher. Ex. K at ⁋ 7.
  • • Reading and math instruction is provided in smaller groups: REDACTED’s reading group includes six students, a special education teacher and a reading specialist. In order to make progress in reading, REDACTED needs a “structured, sequential, systematic approach” to reading and spelling that “involves multisensory instruction.” REDACTED provides such instruction to her. Ex. K at ⁋⁋ 9, 12, 14.
  • • REDACTED’s math group included ten students with two head teachers, both special educators. The teachers utilized Stern Structural Arithmetic, Singapore Math and teacher-made materials focused on a structure and multisensory tools to understand math language, procedures and concepts. Ex. K at ⁋⁋ 22-24.
  • • For writing, REDACTED provided REDACTED with direct multi-sensory instruction in writing sentences and basic paragraph structure utilizing the “Basic Writing Skills” approach designed for students with language-based learning difficulties. REDACTED’s teachers worked with REDACTED on using Wh-question words to expand sentences and basic conjunctions to connect ideas, paragraph structure, using graphic organizers, and going through the writing process step-by-step. Ex. K at ⁋⁋ 18-19; Ex. F at 11-12.
  • • REDACTED benefited from the small group and highly structured multisensory instruction, routine, and repetition of material provided by her teachers at REDACTED. Ex. K at ⁋ 15; Ex. F at 1. Explicit and direct instruction with repetition supported REDACTED’s processing of information, memory and retrieval of information. REDACTED needed many opportunities to review and practice learned material, and REDACTED’s teachers revisited previously learned material and skills as a component of her program, which was “critical” for REDACTED to retain material and skills over time. Ex. K at ⁋⁋ 15, 25.
  • • REDACTED’s teachers give her extra time to formulate and organize her language, and she benefitted from teachers’ reminders to slow down, figure out her main point, and share her main point. Her teachers support her with leading questions and rewording/rephrasing, and reminders to use her learned strategies to improve the quality of her expressive language. Ex. K at ⁋ 17.
  • • REDACTED’s teachers at REDACTED provided REDACTED with other accommodations, modifications and supports which REDACTED needed in order to learn and from which she benefitted: simplified language in instructions; scaffolding; opportunity to demonstrate a skill; monitoring to ensure that she was completing assignments properly; breaking down tasks into small components; reminders to pause and think when she is having difficulties processing information and/or directions; and reminders to pause and think when she is having difficulties formulating what she wishes to say. Ex. K at ⁋⁋ 26-29; Ex. F at 1, 9-10.
  • • REDACTED provided REDACTED with speech-language therapy by a licensed speech pathologist. REDACTED’s speech therapy targeted listening comprehension, higher level thinking skills (such as main idea, details, inferencing, cause and effect), narrative structure, expressive language organization and formulation, word finding and written expression. Ex. K at ⁋ 16.
  • • The speech therapist communicated and collaborated with the classroom teachers: writing is taught by both the classroom teacher and the speech therapist, and students’ speech goals are included in classroom instruction. Tr. 70-71; Ex. K at ⁋ 19.
  • • REDACTED provided REDACTED with occupational therapy by a licensed occupational therapist. REDACTED’s occupational therapy targeted handwriting, visual perception and organizational skills. Ex. K at ⁋ 21.
  • • REDACTED’s REDACTED schedule included morning meeting, math, reading, lunch, handwriting, science, social studies, physical education, writing, art, music, library, technology, occupational therapy and closing meeting. Ex. E.
  • • REDACTED made progress at REDACTED during the 2021-2022 school year:
  • • Her word attacks skills and spelling improved through use of Orton-Gillingham. Ex. F at 5-6, 8.
  • • Her reading fluency and comprehension improved. Ex. F at 7, 9-10.
  • • Her writing improved, as demonstrated by her abilities to write basic and expanded sentences, use punctuation, and write basic paragraphs utilizing graphic organizers. Ex. L at ⁋ 30; Ex. F at 12.
  • • In math, she increased her math fact fluency and ability to solve multi-step math problems, learned addition with regrouping, used arrays to solve multiplication and division problems, and improved her understanding of math concepts such as place value and the relationship between multiplication and division. Ex. L at ⁋ 30, Ex. F at 14-15.
  • • With teacher support, REDACTED participated in social studies and science, worked to understand the curricula, and completed assignments. Ex. F at 18-19.
  • • In speech therapy, REDACTED was better able to discern the main idea in stories and improved her written expression. Ex. G at 1-2.
  • • REDACTED’s parents entered into an enrollment contract with REDACTED obligating them to pay the total 2021-2022 tuition of $72,725.00. Ex. C. REDACTED’s parents have paid this tuition in its entirety. Ex. J.

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 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 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 needs for small classes, specialized reading instruction, and extensive teacher accommodations, modifications and supports for her REDACTED and language-based challenges. The record is clear as to the extent of the individualized special education, related services, accommodations, modifications and supports that REDACTED personnel provide to REDACTED. See paragraphs 17 through 26 above.

REDACTED has made progress at REDACTED during the current 2021-2022 school year. See paragraph 27 above. At REDACTED, REDACTED has made progress across the range of his 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 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 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 11, 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

Parents’ Exhibits

Exh. #

Description

Date

Pages

Request for Impartial Hearing

04/01/2022

7

Ten Day Notice

08/25/2021

4

Enrollment Contract

02/19/2021

7

REDACTED REDACTED Program Description

Undated

1

Student Schedule

2021-2022

1

Mid Year Report

2021-2022

23

Mid Year Speech and Language Remediation Report

2021-2022

2

Mid Year Occupational Therapy Remediation Report

2021-2022

2

Final Attendance

2021-2022

1

Final Affidavit of Payment

01/15/2022

1

Affidavit in Lieu of Testimony

REDACTED REDACTED – REDACTED REDACTED School

06/24/2022

5

Confidential Psychoeducational Evaluation

02/12/2018

26

Footnotes

[1] Parents initially offered documents in evidence on June 24. As the documents were reviewed, it became apparent that there were numerous defects (labeling, indexing, formatting) with the documents. As a result, on July 1, Parents withdrew the documents admitted on June 24 and offered a new set of documents on July 1, which were admitted in evidence on that date. See Tr. 53-54, 57-64.