New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 225768

Student's Name: REDACTED

District: REDACTED

Scho Hearing Requested By: Parent

Actual Record Closed Date: November 7, 2022

Hearing Officer: Dora M. Lassinger The student’s parent requested an impartial hearing on April 7, 2022 challenging the student’s June 1, 2020 IEP, and seeking funding for the student’s tuition at REDACTED (hereinafter “the private school”), where she was unilaterally placed, for the 2020-2021 school year. (Par. Ex. A). I was designated to hear this matter on June 16, 2022.

Following a pre-hearing conference and a status conference, a hearing on the merits was held on September 19 and October 24, 2022. The compliance date was extended to November 22, 2022. (IHO Ex. I).

Department of Education Position The Department of Education (“DOE”) presented documents and testimony in support of the recommended program; and argued that any tuition reward should be reduced to reflect the religious portion of the student’s educational program. (Tr. p. 93). No evidence was presented regarding the ability of the designated site to implement the recommended program.

Parent’s Position The parent argued that the school district’s recommendation was inappropriate for the student, who requires a smaller class with one-to-one support; and that no evidence was presented that the recommended program could be implemented. The parent further argued that she met the burden of proving that the private school is providing instruction specially designed to meet the student’s unique needs and that equitable considerations do not bar reimbursement. Finally, the parent maintains that the religious portion of the program constitutes approximately seven percent of the program, and that the parents are entitled to funding of the total tuition amount of $105,200 less seven percent. (Tr. pp. 93-105).

Evidence at Hearing The student had developmental delays and received Early Intervention services. Subsequently, she received services from the DOE, to address her physical and speech delays. She began attending the private school in 2018. (Tr. p. 82).

On December 19, 2019, the student’s Occupational Therapy (“OT”) provider reported that the student was making slow but steady progress in OT, and recommended continuation of OT services twice per week for 30-minute sessions, individually. Modified testing formats were recommended to eliminate excessive writing demands. (DOE Ex. 6).

A school progress report was submitted on January 22, 2020, when the student was in the REDACTED grade. It was reported that the student was performing math at a mid-third grade level. It was reported that the student had learned to perform math calculations, but that she had difficulty with word problems. The school reported that she is improving in this area, with consistent daily exercises and multiple strategies, including pictures, tables, working backwards and finding patterns. In English, it was reported that the student was reading at an end second grade level, with stronger comprehension skills. Her difficulty with decoding was being addressed through the Wilson Program. She was learning to write using the Schoolwide Writing Fundamentals Program, and could write a simple paragraph of five to eight sentences. For language, she required repetition of instructions, and had difficulty expressing her ideas. The student had difficulty with social cues, identifying her emotions and expressing her needs. She was reported to be motivated and conscientious; but easily distracted, and requiring 1:1 teacher assistance. It was reported that she required small group instruction, and a multisensory approach to learning.

It was reported that she was benefiting tremendously from her self-contained special education classroom and it was recommended that she continue in that setting. (DOE Ex. 5).

On January 1, 2020, the student’s Speech/Language Therapy (“SLT”) provider reported that the student had difficulty with reading fluency, auditory attention, and recall of details following multi step directions. Her vocabulary was limited in both receptive and expressive domains. Improvement was reported in her ability to focus and maintain appropriate eye contact. Progress was noted in making inferences and drawing conclusions from reading comprehension passages, and in her vocabulary. It was recommended that she continue to receive SLT. (DOE Ex. 4).

On January 1, 2020, the student’s counseling provider reported that the student struggles with age appropriate social skills. Counseling sessions focused on developing perspective taking and social awareness skills; and it was reported that further progress in these areas would be beneficial. (DOE Ex. 2).

The parent testified that the student had difficulty remaining on topic for a conversation, and it was hard for her to form friendships. (Tr. p. 83).

An IEP meeting was held on June 1, 2020. and the parent attended. The student was classified with a Speech or Language Impairment and recommended for Integrated Co-teaching Classes (“ICT”) with related services of SLT (1 x 30 individually and 2 x 30 in a group) and OT (2 x 30 individually). It was noted that the parent was concerned with class size. Counseling was not recommended. (DOE Ex. 1). A school location letter was sent on August 12, 2020 designating a school where the recommended program would be provided. (DOE Ex. 2). No evidence was presented at the hearing regarding the school’s ability to implement the recommended program.

The school psychologist (who also acted as District Representative) testified that the student functioned at low level in reading and math. In math, she had difficulty recalling the steps to solve problems. She read slowly and had difficulty decoding which impacted her writing skills. (Tr. pp. 33-35). According to the IEP, she was functioning at a second-grade level for reading and a third-grade level for math. (DOE Ex 1).

The IEP team was informed that the student had been diagnosed with REDACTED. (Tr p. 44). The team was informed that treatment was completed and that the student was able to return to school an participate. (Tr. pp. 37-38, 44).

The school psychologist testified that an ICT classroom consists of up to 25-30 students with one general education and one special education teacher, collaborating. The student’s class would follow the REDACTED grade Common Core curriculum, with modifications. The team recommended the ICT program based upon the student’s IQ score, which was in the average range, and her academic progress. It was felt that the ICT class would give her the opportunity for socialization with typically developing peers. The parent stated that she wanted a smaller class for her daughter, and her concerns were noted. The team explained that a smaller setting would be too restrictive. (Tr. pp. 39-40, 48-49). The team believed that the recommended program would be appropriate for the student (Tr. p. 41).

• • The student’s mother testified that she disagreed with the recommended class size, and felt that her daughter would not receive the attention she needed. The parent explained student’s medical needs, including that fact that she was receiving chemotherapy, at time of meeting; and that treatment would be ongoing throughout the school year. The hope was that she would be able to return to school. (Tr. pp. 85-86).

The parent received a school placement and contacted the school. She was unable to visit the school due to COVID restrictions. She had email and telephone conversations with the parent coordinator and concluded the school was not appropriate for the student, due to the size of the classroom and the school and the fact that 40 percent of the students had special needs. She testified that her daughter had difficulty with balance, and was using a wheelchair. (Tr. pp. 87-88).

• • On August 21, 2022, the parent provided notice of her intention to unilaterally place the student at the private school and seek funding. The parent rejected the program recommended by the DOE because she felt it was too large for her daughter, and would not provide appropriate academic and social grouping. The parent also stated that her daughter requires a health paraprofessional, because she is unable to walk unassisted. (Par. Ex. B) She later sent another letter requesting door-to-door transportation. (Par. Ex. C) The parent did not receive a response to the letters, or an offering of a health paraprofessional and door-to-door transportation. (Tr. pp. 88-89).^[1] The parent testified that due to her daughter’s medical problems, the goal for the 2020-2021 school year was for her to maintain her skills, including her social interactions; and in some instances for her to recover skills which were lost, such as speech and fine motor skills. (Tr. p 90).
• • On August 24, 2021, the parent signed a contract enrolling the student at the private school for the 2020-2021 school year, with a tuition of $98,000, and an additional $7,200 for related services of SLT and OT. (SLT 2 x 30; OT, 2 x 30), for a total of $105,200. (Par. Ex. D). As of October 24, 2022, the parent made payments totaling $5,500 toward her tuition obligation, leaving a balance owing of $99,700.00. (Par. Ex. H). The parent’s income in 2019 was less than the tuition; and she had three dependents. (Par. Ex. G). The parent testified that she was unable to pay the entire cost of the tuition. (Tr. p. 91).

The principal of the private school testified that she is certified in Special Education dn Regular Education. The private school is a self-contained special education program consisting of classes hosted within mainstream schools. Students have opportunities to interact with mainstream students for lunch, recess and extracurricular. Students have IEP’s and goals. (Tr. p. 53).

The private school services students who have difficulties with speech and language processing, focus and social interactions. Typically, classes have a 6:1:1 student to teacher ratio. The school provides related services of SLT, OT and Counseling, with providers who are licensed and certified. (Tr. pp. 54-55). During the 2020-2021 school year, there were approximately 50 students in the program. (Tr. p. 55).

The student entered the private school program in September 2018 as a REDACTED grade student. For the 2020/2021 school year, the student was in a REDACTED -grade class with a staffing ratio of 5:1:1. One of her teachers is state certified in special and regular education and is a Board-Certified Behavior Analyst (“BCBA”). The other teacher holds a teaching certificate form a teacher’s seminary. The student was grouped with students with similar needs and profiles. (Tr. pp. 56-58).

The student functioned a few years below grade level, and had receptive and expressive language delays. She struggled with focusing and following multistep directions. She required a lot of one-to-one instruction, and learned in a small group. As she was receiving treatment during the school year, she was weak and spoke very slowly. Due to her weak fine motor skills, it was hard for her to write. Due to her weakened immune system, she was not permitted to attend in person. She received remote instruction for a full day, including one-to-one instruction, through Zoom. (Tr. pp. 58-59). She was also able to interact socially with the other students and participate in classroom lessons. (Tr. p. 60).

The student was instructed in reading using the Wilson reading program, which was a multisensory reading approach. For reading she received one-to-one support, with instruction in decoding and literal comprehension. Due to her weakness and treatments, the goal was for her to maintain skills, and the goal was achieved. (Tr p. 62-63). For writing, she received a lot of one-on-one help. She dictated her work, due to her difficulty writing, and performed the assignments. (Tr p 64). For math, she also achieved the goal of maintaining skills, with one-to-one support. (Tr. p. 65). The student received related services of SLT, working on speech fluency, receptive and expressive language activities, (2 x 30); OT, to strengthen fine motor skills (2 x 30) and daily social groups. (Tr. pp. 67-68). The student needs help with initiating and maintaining conversations, reading facial expressions, identifying emotions and turn-taking, which were the skills which were addressed in social groups. (Tr. p. 69). The student’s social skills were maintained, and she was able to be part of the group. (Tr. p. 70).

The student’s school program includes religious instruction. The portions of her schedule devoted to religious instruction were prayer, bible study, weekly bible portion, and laws of proper conduct. (Tr. p. 71).

The student attended school Mondays through Thursdays, between 8:20 AM and 4:05 P.M. (7 hours and 45 minutes); and Fridays between 8:20 AM and 12:25 PM. (4 hours and 5 minutes). Her Friday schedule alternated between 125 minutes of religious instruction (Prayers, Bible Study; Laws of Proper Conduct and Weekly Bible Portion) and 30 minutes of religious instruction (prayer). On Mondays through Thursdays, she received 40 minutes of religious instruction (Prayers and Bible Study). In total, she receives 475 minutes of religious instruction on a bi-weekly basis, out of 70 hours and 10 minutes (4,210 minutes) of instruction Therefore, I have calculated the percentage of her instruction which was devoted to religious instruction as eleven percent.

Findings of Fact, Conclusions of Law and Order The school district bears the burden of proving the appropriateness of the recommended program. Education Law 4404(1). The school district must comply with the procedural requirements of the Individual with Disabilities Education Act. (IDEA), and the IEP developed through its CSE must be reasonably calculated to enable the student to receive meaningful educational benefits. (Board of Educ. v. Rowley, 458 U.S. 176, 192 [1982]. The instruction offered must be specially designed to meet the child’s unique needs through an individualized education program. Endrew F. v. Douglas County School District, 137 S. Ct. 988 (2017). The IEP must be reasonably calculated to enable the child to make progress appropriate in light of his circumstances. Id. at 1002.

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 be Board of Education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. Forest Grove School District v. T.A., 557 U.S. 230 (2009); School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U. S. 359 (1985).

I find that the DOE failed to meet the burden of proving the appropriateness of the recommended program. The record indicated that the student required a self-contained class with small group and individual instruction, due to her difficulty with language and focus, and her academic delays. I find that the student was not likely to make progress in the recommended ICT program, in classes of up to 30 students. Furthermore, the recommended program did not address the student’s significant social/emotional needs. Finally, no proof was presented that the recommended program could be implemented at the designated site.

Appropriateness of Parental Placement To qualify for funding under the IDEA, the parents must demonstrate that the parental 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.” See Frank G. v. Bd. Of Educ. Of Hyde Park, 459 F. 3d 356, 365 (2d Cir. 2006) (citing Rowley). cert. denied, Board of Educ. Of Hyde Par, v. Frank G. 128 S. Ct. 436 (2007). The fact that the facility selected by the parents to provide special education services to the child is not approved as a school for children with disabilities does not preclude an award of reimbursement. Florence School District Four et al. v. Carter, 510 U.S. 7(1993).

The parent met her burden of proving that the parental placement met the student’s need for a self-contained class with small group and individual instruction, and related services of SLT, OT and social skills instruction.

Equitable Considerations

• • In determining whether equitable considerations support a request for reimbursement, the courts will consider whether the parents have cooperated with the school district throughout the process to ensure that their child receives a FAPE. Bettinger v. New York City Bd. of Educ., 49 IDELR 39 [S.D.N.Y. Nov. 20, 2007]. The Courts must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Florence County School District Four, et al v. Carter 510 U.S. 7 (1993); M.C. v. Voluntown, 226 F. 3d 60 (2d Cir. 2000).
• • The record indicates that the parent cooperated with the DOE by participating in the CSE review, communicating with the recommended site, voicing her objections to the recommended program, and providing timely notice of her intention to unilaterally place the student and seek public funding.

Direct funding of tuition is an available remedy where equitable considerations favor an award of the costs of private school tuition but the parents, though legally obligated to make tuition payments, have not done so due to a lack of financial resources. Application of a Student Suspected of Having a Disability, Appeal No. 15-038 (citing Mr. and Mrs. A. v. New York City Dep’t of Educ. 769 F. Supp. 2d 403 (S.D.N.Y. 2011); See Connors v. Mills, 34 F. Supp. 2d 794 (N.D.N.Y. 1998). In these proceedings, the parent presented evidence that she was unable to pay the full amount tuition and seek reimbursement.

The parent acknowledges that a portion of the student’s day consists of religious instruction, and she does not seek funding for that portion. The DOE also argued that any tuition award should be reduced to reflect the religious portion of the student’s educational program. I find that religious instruction comprises 11% of the school day, and funding for that portion will not be awarded. In total, I find that the parent is entitled to funding in the amount of $93,628 (89% of the total tuition amount).

Therefore, I will order that the parent be reimbursed for the amount of the 2020/2021 tuition paid to date ($5,500), and that the balance of this award ($88,128) be paid directly to the school.

ORDER

For all of the foregoing reasons, it is hereby ordered that the DOE shall, within 15 days of this order, reimburse the parent $5,500 and pay $88,128 directly to the private school, on account of the student’s tuition for the 2020/2021 school year.

• • Dated: November 14, 2022 Dora M. Lassinger

DORA M. LASSINGER, 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 Office (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.

DOCUMENTATION ENTERED INTO THE RECORD

• • Impartial Hearing Officer
• • Extensions, various dates, 4 pp.

Department of Education

EXHIBIT NO.

DATE

DESCRIPTION

NO. OF PAGES

1

6/1/20

IEP

32

2

8/12/20

Prior Notice Package

4

3

1/1/20

Counseling Progress Report

2

4

1/1/20

Speech Therapy Report

1

5

1/22/20

School Progress Report

3

6

12/9/19

Occupational Therapy Progress Report

2

• • Parent’s Exhibits
• • Letter
• • Date
• • Name of Document
• • # of Pages
• • A
• • 4/7/22
• • DPC
• • 3
• • B
• • 8/21/20
• • Parent letter
• • 2
• • C
• • 10/26/20
• • Parent letter
• • 2
• • D
• • 20-21
• • Contract
• • 2
• • E
• • 11/10/20
• • Payment affidavit
• • 1
• • F
• • 20-21
• • Schedule
• • 1
• • G
• • 2019
• • Federal 1040 form
• • 2
• • H
• • 10/24/22
• • Corrected payment affidavit
• • 1 H

10/24/22

Corrected payment affidavit

1

Footnotes

[1] In these proceedings, the parent is not requesting a paraprofessional or transportation relief; as the student attended remotely for much of the school year. (Tr. p. 92).