New York City Department of Education, Impartial Hearing Decision

NYSED # 571863 / NYC # 225734

FINDINGS OF FACT AND DECISION

Case Number: 225734

NYS Case Identifier Number: N/A

Student’s Name: [REDACTED]

Date of Birth: [REDACTED]

District: REDACTED

Hearing Requested by: Parent

Date of Hearing: 5/18/22

6/15/22

7/13/22

8/9/22

Record Close: 9/6/22

Hearing Officer: Nancy M. Lederman, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED MAY 18, 2022*

For the Student:

[REDACTED], Attorney

For the Department of Education:

[REDACTED], District Representative

[REDACTED]., Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED JUNE 15, 2022*

For the Student:

[REDACTED], Attorney

For the Department of Education:

[REDACTED], District Representative

[REDACTED]., Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED JULY 13, 2022*

For the Student:

[REDACTED], Attorney

[REDACTED], Parent

[REDACTED], Associate Principal and Educational Director, [REDACTED]

For the Department of Education:

[REDACTED]., Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED AUGUST 9, 2022*

For the Student:

[REDACTED], Attorney

For the Department of Education:

[REDACTED]., Attorney

[REDACTED], Legal Intern (Observing)

* All appearances in this hearing were via telephone or videoconference.

This case was brought before me pursuant to appointment by the New York City Department of Education (DOE) under the Individual with Disabilities Education Act (IDEA), 20 United States Code §1415(f)(1).

[REDACTED] ([REDACTED]) is a [REDACTED] -year-old student, whose parent [REDACTED] ([REDACTED], or parent) has brought the instant hearing, arguing that the DOE had failed to provide [REDACTED]a free appropriate public education (FAPE) for the 2021-2022 school year. Ex. A. The hearing convened on May 18, June 15, July 13, and August 9, 2022. Extensions were granted in accordance with regulations, resulting in a final compliance date of September 19, 2022

DISTRICT AND PARENT POSITIONS

The due process complaint notice (DPCN) in this case, dated April 7, 2022, claimed that the district failed to provide [REDACTED]with a free appropriate public education (FAPE) for the 2021-2022 school year, claiming that the district had created an IEP for the school year with multiple procedural and substantive errors, citing an inappropriate program recommendation, inadequate evaluations, inadequate team membership, inadequate information and other data in the IEP, and inappropriate placement recommendation. As relief, the parent requested the DOE to provide funding or reimbursement for tuition and related services at the student’s placement at [REDACTED]/[REDACTED] ([REDACTED], or [REDACTED]) for the 2021-2022 school year. Ex. A.

At hearing on May 18, 2022, the district representative explained the district was challenging the parent on the relief requested. In regard to Prong 1 of a Burlington-Carter analysis, he stated the district was “moving forward.” He had no position concerning equities.

At hearing on June 15, 2022, a different representative appeared, confirmed that the district would be defending this case and identifying three witnesses who would appear for the district. The parent attorney identified two witnesses. At hearing on July 13, 2022, the original district representative stated that the district did not have witnesses. He confirmed that the district was conceding Prong 1 in the case, stating that it would be proceeding on Prong 2 and Prong 3 moving forward. The parent attorney clarified that the parent was asking for a pendency in the case in case the ruling was against the parent.

FINDINGS OF FACT

[REDACTED]is s student classified as having a learning disability. According to [REDACTED], she struggles academically, and tends to lose focus in her classroom. He mind wanders and she’s not on grade level in most subjects. She went to REDACTED until 8th grade, and then to [REDACTED]. [REDACTED]was in the 12th grade at [REDACTED], part of [REDACTED], in the 2021-2022 school year. Tr. 121-146.

An IEP meeting for [REDACTED]was held on April 29, 2021, recommending an ICT class, and speech and language therapy. Ex. 1. [REDACTED]confirmed attending and voicing her opinion, as well as having a letter written. She testified that the DOE issued a school placement, stating that she had difficulty contacting the school, but finally did get in touch and had a visit to the school where she met with someone whose name she couldn’t recall. She said he wasn’t able to give her much information, just a “fast summary of the program.” She stated that she didn’t’ the placement was appropriate because sitting in a classroom with 30 people and in a huge setting was not the right atmosphere for ca to get the most out of it given her easily being distracted. She said that she visited the public school at the beginning of September, possibly at the end of August, asserting that it was before she signed the contract with [REDACTED], which was why it took so long. The contract was signed on September 9, 2021, but she continued to insist and repeated several times that she did not sign the contract with [REDACTED] prior to visiting the public school. By email on October 20, 2021, the parent wrote to the school, writing “I would like to come to see the school and was told an appointment could be made through this email. I have been trying to call and even went to the school to get to the right person. If I have reached you in error please let me know so that I may find the right person.” She testified that she didn’t recall, but it “could be that I wanted to revisit it.” She confirmed that she had visited the school in prior a school year, but asserted that she went several times, to get to the right person, Tr. 121-146; Exs. B, C.

[REDACTED], [REDACTED]. [REDACTED]was in the 12th grade at [REDACTED], part of [REDACTED], in the 2021-2022 school year. [REDACTED], Associate Principal and Educational Director at the school, testified that in the 2021-2022 school year there were 40 children attending the school, over four grades divided into small classes ranging from 7 to 12 students. She said the student teacher ratio was generally 10:1, or with an additional assistant for a larger class. Students generally have speech and language deficits or reading difficulties or ADHD; a few also have anxiety. Tr. 66-119.

[REDACTED]was in a 12:1:1 class, with a teacher and assistant teacher; occasionally a related services provider was in the room as well. [REDACTED] identified and qualifications of the student’s teachers n the departmentalized schedule, and explained that the assistant teacher, who was studying for a Master’s degree in special education, stayed with the class. Tr. 66-119.

[REDACTED] was also [REDACTED] ELA teacher in the 2021-2022 school year. She described [REDACTED] issues as focusing and being attentive in class, needing redirection. She also presented with organizational skills when facing certain academic tasks. Her work did not always follow the instructions and she had a hard time vocalizing or writing it out in the correct form. Her receptive and expressive language challenges, partly responsible for her zoning out at times. Generally the ELA class instruction was for no more than 10 minutes, before breaking into smaller groups, usually three to four students. According to [REDACTED], [REDACTED]was able to read independently at her level, but inconsistent efforts required motivation through personal attention. Her reading level at the start of the school year was end of 7th, early 8th grade. [REDACTED] described work with highlighting, and breaking down the Common Core curriculum to help prepare her for a Regents exam, modifying by breaking it down and chunking the material in a very organized way. She discussed assessments and the availability of a second adult in the room to work with [REDACTED]individually and privately on certain skills when she was willing. They addressed her organizational skills with creating outlines and step-by-step procedures written out for her, to be weaned off when she could do the tasks independently. In regard to her reluctance to answer questions even when knows the answer, she was encouraged to jot down notes or questions or fill out graphic outlines, to help her be more prepared, with time to process and prepare. [REDACTED]also her speech and language therapy twice a week, which also worked on her receptive and expressive language skills, helping her with reading comprehension and writing skills in sessions as well as with her organization of materials. [REDACTED] stated that she made progress during the school year, noting she was able to express herself in better ways and was more willing to participate. Tr. 66-119; Exs. E, F, K.

[REDACTED]also participated in an internship. A twice weekly work under supervision, although [REDACTED] was not able to recall whether she was a preschool assistant or did something, else. When asked, she asserted that the schools internships were not religious in content. Tr. 66-119. [REDACTED]said [REDACTED] internship had been at a school called [REDACTED], a special needs school, where she shadowed some of the children and got to know them. It taught her about how different children were, noting kids with autism and nonverbal children, Tr. 121-146.

The class schedule for 2021-2022 indicated the school had classes in religious instruction, included morning and afternoon prayers, [REDACTED], [REDACTED], [REDACTED], [REDACTED] and women studies, for a total of 13 hours out of a 44 hour week Monday through Friday, 29.5 percent religious and 70.4 percent secular. [REDACTED] stated that secular portion of the schedule was about 74 percent and the [REDACTED] about 26 percent. Tr. 66-119; Ex. D.

[REDACTED] testified that made [REDACTED]progress during the year and was able to pass the Regents exam. She increases her level of answering the questions, from less than half to answering two-thirds reading comprehension questions. Her reading level at the end of the year was closer to a 9th grade reading level. In writing, she had difficulty harnessing her ideas, preferring creative writing and not quite understanding the process of a beginning middle and end in any kind of writing. With the use of outlines and practice drills by the end of the year she was able to plan out the writing and complete a five-paragraph essay. In math, she could do simple calculations with calculator and interpret simple graphs. The work was on business math, and she was able to work with decimals and two-step equations. She had difficulty multiplying fractions and more complex tasks, and if it was in depth, she would get frustrated and retreat, again displaying anrad time with focusing and self-regulation. The work included tasks like managing a budget, and based on a Common Core business math curriculum, and broken down into step-by-step sequential material. At the start of the year she was at a 9th grade level; by the end of the year had progressed closer to a mid-9th, early 10th grade level. [REDACTED] stated that [REDACTED]came to the school unsure of her skills, and by the time she left with appropriate interventions she was a more confident student able to relate and aster the skills needed for post high school. When asked, she asserted that the schools internships were not religious in content. Tr. 66-119.

[REDACTED]also testified that she saw “progression,” [REDACTED]doing her schoolwork and being attentive to what had to be done. She thought the school was appropriate because of the small class and the attention she needed, getting redirected she was more focused and still lost focus. It was easier to redirect her and get her to succeed. Tr. 121-146.

Contract. The enrollment contract with [REDACTED] for the 2021-2022 school year provides a tuition charge of $47,895 plus a separate contract for speech services for $1,786.80, for a total of $49,681.80. An affidavit from a school official dated June 7, 2022 confirmed the amount owed, and stated that no payment had been made. Ex. G, H.

[REDACTED]confirmed that the contract allowed her to opt out. She stated that she signed the contract on September 9, 2021, stating that it was hard to see the school to and to get into the school and meet with someone. She explained that she didn’t want to make any decision until she explored the options that the DOE had given her, because that was her first choice as she needed to make sure it was the right fit for [REDACTED]. [REDACTED]stated that she still owes the tuition and related service; explaining that she hadn’t paid because it’s pricey and she doesn’t really have the funds. Her tax return, under the maiden name REDACTED, indicates no ability to pay the charges. Tr. 121-146; Ex. L.

CONCLUSIONS OF LAW

The decision in this case rests on a determination of the three-pronged test set forth by the United States Supreme Court in the Burlington case, which provided that a board of education may be required to pay for educational 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. Dept. of Educ., Massachusetts, 471 U.S. 359 (1985); Florence County Sch. Dist. Four v. Carter, 510 US 7 (1993).

ISSUE 1 - Appropriateness of School District Program

A central purpose of the Individuals with Disabilities Education Act (IDEA) is to ensure that students with disabilities have available to them a free appropriate public education (FAPE). 20 U.S.C. § 1400(d)(1)(A); see Schaffer v. Weast, 126 S. Ct. 528 (2005); Bd. of Educ. v. Rowley, 458 U.S.176 (1982); Frank G. v. Bd. of Educ., 459 F.3d 356 (2d Cir. 2006). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP, which is reasonably calculated to enable the student to receive educational benefit. See Bd. of Educ. v. Rowley, 458 U.S.176 (1982); 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. The student's recommended program must also be provided in the least restrictive environment (LRE). 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. § 300.114(a)(2); 8 NYCRR 200.6(a)(1).

In this case I find that the DOE has failed to sustain its burden. In so ruling, I note the district representative addressing this prong of the analysis, conceding that the district had not provided the child with a FAPE.

Under the circumstances and for the reasons noted above, I find the district failed to provide FAPE to [REDACTED].

ISSUE 2 - Appropriateness of Parent Placement

Under the second prong of Burlington, the parents bear the burden of proving the appropriateness of the services sought for [REDACTED]. M.S. v. Board of Education of the City of Yonkers, 231 F.3d 96, 104 (2d Cir. 2000); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 94-29; Application of a Child with a Disability, Appeal No. 95-57. In order to meet that burden, the parents must show that [REDACTED] offered an educational program designed to meet [REDACTED] special education needs. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 98-76; Application of a Child with a Disability, Appeal No. 94-29. A unilateral placement is only appropriate if it provides education instruction specifically designed to meet the unique needs of a handicapped child. Gagliardo v. Arlington Central School District, 489 F.3d 105 (2d Cir. 2007).

In this regard, I find that the parents have sustained their burden of demonstrating the appropriateness of the program at [REDACTED] for [REDACTED]. I credit [REDACTED]’s description of the program, with the emphasis on focusing and organization, and various strategies such as modifying, breaking down, and chunking material in a very organized way, creating outlines and step-by-step procedures to address her organizational skills, and helping her overcome reluctance with time to process and prepare. I also note the speech and language therapist’s work helping her with reading comprehension and writing skills. I credit [REDACTED]’s attestation to [REDACTED] progress during the year, citing her improvement in expressing herself, her increased willingness to participate and answer questions, specific improvements noted in reading and writing, as well as in her business mar instruction. I also note the testimony of [REDACTED], crediting the small class size and the attention [REDACTED]needed, to refocus her and redirect for her to get her to succeed. Certainly, the fact that she passed the Regents exam was evidence of progress and success in the school year.

I discount the district representative’s argument made in closing that the noting that the witness from the school couldn't indicate what percentage of that activity was religious and what percentage was secular, as [REDACTED] did provide a percentage (just not a completely accurate one). The percentage of religious acidity has no effect on the appropriateness of the secular program. The district’s other argument that the parent testimony didn't address appropriateness doesn’t eliminate the evidence of appropriateness there was in the record. In fact, the parent did testify, as noted above.

For the reasons noted above, I find that [REDACTED] provided a program for [REDACTED]designed to meet her special education needs. Adjustments to the award in this case are detailed below.

ISSUE 3 - Equitable Considerations The third prong of the Burlington decision requires a balancing of the equities in determining whether reimbursement should be awarded. The IDEA provides that an award of tuition reimbursement may be reduced or denied if notwithstanding their being advised that they should do so, parents neither inform the CSE of their disagreement with its proposed placement and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the school district with written notice of such information ten business days before such removal. 20 U.S.C. 1412(a)(10)(C)(iii).

Equities requires analysis beyond the mere filing of a 10-day notice. Factors relevant to equitable considerations include whether the withdrawal of the student from public school was justified. The statutory provision serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a FAPE can be provided in the public schools. Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 (1st Cir. 2004); see also Frank G., 459 F.3d 356 (2nd Cir. 2006).

As noted above, the district’s main objection was to the parent’s intentions, arguing that her testimony made clear that she was determined, regardless of the assessment by the DOE, to continue to have her child remain in the school. He characterized her answers as vague and “pre-cooked” into the parent's decision to place the child in the school.

The significance of the parent’s intent was the subject of a decision by the Second Circuit, which held that even when parents have no intention of placing a student in the recommended program, it is not a basis to deny a request for tuition reimbursement absent a finding that the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA. C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826 (2nd Cir. 2014).

In this case, the parent’s testimony that she was considering a public school for her then 16-year-old child in the last year of high school after spending her entire school history in private school was simply not credible. Moreover, her conflicting account of visiting the school, testifying that she had gone to the school before making her decision and insisting that her visit to the school was prior to signing the contract with the private school was in direct conflict with the email she sent to the school in October 2021 asking to schedule a visit. While her intent to place the child in a private school and the date of the visit would not otherwise have interfered with the record, the varying inartful and unhelpful accounts in her testimony served only to muddy the waters.

Despite the parent’s disingenuous explanations, there was no evidence that she had obstructed or was uncooperative in the school district's efforts to meet its obligations under the IDEA. Under the circumstances, the record does not warrant denial of an award.

Direct payment. The parent has also requested direct funding to the school. In Connors vs. Mills, 34 F.Supp.2d 795 (NDNY, 1998), the Court stated that once the Burlington/Carter prerequisites are met, the issue is not the fact of payment, but the timing of that payment, and stated that when “…a parent shows that his or her financial circumstances eliminate the opportunity for unilateral placement in the non-approved school, the public school must pay the cost of private placement immediately.” An impartial hearing officer can order prospective tuition funding, where in circumstances to hold otherwise would be to deny a child the right to access to services under the IDEA. Sabatini v. Corning-Painted Post Area School District, 78 F.Supp. 2d 138 (USDC, WDNY).

In this case, the parent’s tax return confirmed that she didn’t have the means to pay the tuition. Under the circumstances, direct funding in this case is warranted.

In regard to the amount for the award, I turn to the schedule for determining the time dedicated to secular instruction or activities. Despite [REDACTED]’s testimony, in which she testified that the portion of secular instruction at the school was 74 percent, simple calculation of the hours set forth on the child’s schedule revealed a lower 70.4 percent of time allotted to religious instruction or activity. Thus, the general total tuition amount for instruction and services of $49,681.80 will be reduced to reflect the 70.4 percent dedicated to secular instruction, or $34,976.

ORDER

• • The DOE shall provide funding for the student’s placement at [REDACTED] for the 2021-2022 school year, at a full cost not to exceed $34,976.

IT IS SO ORDERED.

Dated: September 9, 2022

_____________________________

NANCY M. LEDERMAN

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 proceedings 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.

EXHIBITS

DEPARTMENT OF EDUCATION EXHIBITS

1 IEP, 4/29/21, 20 pages

2 IEP meeting minutes, 4/29/21, 2 pages

3 Attendance page, 4/29/21, 3 pages

4 Vocational interview with parent, 4/29/21, 2 pages

5 PWN, 6/25/21, 4 pages

6 School location letter, 6/25/21, 2 pages 54

7 Psychoeducational assessment, 5/1/18, 7 pages

8 PWN, 1/14/21, 3 pages

PARENT EXHIBITS

A Due process request, 4/7/22, 5 pages *

B Ten-day notice, 8/23/21, 4 pages

C Email to school, 10/20/21, 1 page

D 12th grade schedule, undated, 1 page

E Speech progress report, 1/5/22, 2 pages

F 12th grade progress report, 4/6/22, 3 pages

G Tuition contract and related services, 9/9/21, 6 pages

H Tax return, 2020, 1 page

I Affidavit of payment, 6/7/22, 1 page

J IEP, 4/29/21, 14 pages

K Course descriptions, undated, 5 pages

L Tax return, 2021, 2 pages

M Findings of fact and decision, 5/23/22, 15 pages

* Although the parent’s evidence list indicated a hearing request dated 12/3/20, in fact the DPCN entered into evidence as Exhibit A was dated and filed 4/7/22. Correction was noted in the record at page 142 of the transcript..