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Special Education Law
DECISIONMixed ResultIHO Case No. 226717

New York City Department of Education, Impartial Hearing Decision

October 14, 2022·Jean Marie Brescia·v. Carter, 510 U.S. 7 (1993).

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

FINDINGS OF FACT AND DECISION

Case Number: 226717

Student’s Name: REDACTED REDACTED

Hearing Requested By: Parent

Dates of Hearing: July 7, 2022

August 10, 2022

September 14, 2022

Actual Record Close Date: October 1, 2022

Hearing Officer: Jean Marie Brescia, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

July 7, 2022 For the Parent:

REDACTED REDACTED, Esq.

For the Department:

REDACTED REDACTED, Esq.

August 10, 2022 For the Parent:

REDACTED REDACTED, Esq.

For the Department:

REDACTED REDACTED, Esq.

September 14, 2022 For the Parent:

REDACTED REDACTED, Esq.

REDACTED REDACTED, Parent

REDACTED REDACTED, Educational Director and Curriculum Coordinator, REDACTED REDACTED For the Department:

REDACTED REDACTED, Esq.

On June 30, 2022, I was designated as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1415(j), in the matter of REDACTED, after the appointment of another hearing officer was rescinded. REDACTED’s parent requested the hearing on June 1, 2022 in order to challenge the Department of Education’s failure to offer REDACTED a free appropriate public education for the 2020-2021 school year and to seek funding for tuition at REDACTED, a non-public special education school with a religious component, for the 2020-2021 school year. Ex. A.

A pre-hearing conference was conducted on July 7, 2022. The hearing on the merits was conducted on August 10 and September 14, 2022. The Department waived an opening statement, offered two exhibits, which were admitted in evidence, and did not present the testimony of any witnesses. Tr. 13, 14, 28-29, 70. The Department did challenge the appropriateness of REDACTED for REDACTED. Tr. 70.

The parties made joint applications on the record for extensions of the compliance dates. The applications were granted by written Orders of Extension dated August 10 and September 14, 2022.

The record closed on October 1, 2022, upon the hearing officer’s receipt and review of the transcript of the last hearing date, and the Actual Record Close Date is October 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 a now REDACTED-year-old boy whose disability, for the purposes of the IDEA, is classified as speech/language impairment. Ex.A.
  • • REDACTED experiences difficulties with expressive, receptive and pragmatic language, attention, cognition, academics, executive functioning skills, behavior and social skills. Tr. 46; Ex. E, Ex. O at ⁋ 10, Ex. P at ⁋ 2.
  • • The Department convened an IEP meeting on June 16, 2020. The CSE recommended that REDACTED’s disability be classified as speech or language impairment and that REDACTED attend an ICT program with a paraprofessional and related services. Ex. 1; Ex. P at ⁋ 5.
  • • REDACTED’s mother objected to the program recommendations and explained that REDACTED needed a small, full-time special education program to address his academic, social, emotional and behavioral needs. Ex. P at ⁋⁋ 5-7; see also Ex. 1 at 1-2.
  • • REDACTED’s mother placed REDACTED at REDACTED for the 2020-2021 school year. Exs. J, N.
  • • REDACTED is a small, full-time special education school serving students 5 through 13 years of age. Ex. O at ⁋⁋ 4-5.
  • • During the 2020-2021 school year at REDACTED, REDACTED was in a REDACTED grade class of six students with a teacher and an assistant teacher. Tr. 36-37, 39.
  • • All the students in REDACTED’s class experienced difficulties with attention, academics, language, executive functioning and behavior. Ex. O at ⁋ 11.
  • • The school provided in-person learning for the entirety of the school year. Tr. 60.
  • • School personnel developed an individualized plan for REDACTED with detailed goals specifically targeting REDACTED’s needs. Tr. 53; Ex. B. The goals are in the areas of reading decoding, listening and reading comprehension, reading fluency, writing, spelling, vocabulary, capitalization and punctuation, addition and subtraction, math concepts, math problem solving, science, social studies, and REDACTED language, reading and writing. Ex. B.
  • • School personnel worked on these goals with REDACTED during the school year, and REDACTED made progress on these goals. Tr. 53-54; Ex. B.
  • • REDACTED’s school schedule included prayer, language arts, NeuroNet, Fundations, math, lunch, REDACTED cultural studies (calendar, holidays, bible study), REDACTED reading, REDACTED handwriting, science/social studies, and the related services of speech, OT and counseling. Ex. L.[1]
  • • Religious studies include study of religious holidays, bible studies and cultural studies. Tr. 44-45.
  • • REDACTED language is taught as a language and not as a religious subject. Tr. 42, 45.
  • • Approximately 85% of the school week is scheduled for secular subjects and 15% of the school week is devoted to prayer and religious subjects. See Ex. L.
  • • Fundations is a Wilson-based phonics program. Tr. 48. The school also implements a comprehensive guided reading, vocabulary and writing program. Tr. 52.
  • • NeuroNet is an OT program addressing executive functioning skills, attention, memory and learning. Tr. 45-46. This is a group program, and REDACTED benefitted from the program in terms of improved attention, following directions and memory. Tr. 46-47.
  • • REDACTED’s teachers utilized the Wilson Fundations program to teach decoding and spelling and the Wonders Program (a comprehensive literacy program) for comprehension. Ex. O at ⁋⁋ 18-20.
  • • REDACTED started the school year as a nonreader and was unable to retell stories or answer “WH” questions. Tr. 49, 63. During the school year, he “mastered” many phonics principles and learned to decode words with digraphs, prefixes and suffixes and multisyllabic words. Tr. 49; Ex. C at 1, Ex. D. at 1, Ex. O at ⁋ 21.
  • • His reading comprehension also improved: his understanding of text, ability to retell a story, and answer “WH” questions. Tr. 49-50; Ex. C at 1, Ex. D at 1, Ex. O at ⁋⁋ 21, 23.
  • • His spelling and vocabulary improved. Ex. C at 1.
  • • In writing, REDACTED learned to write a complete sentence with punctuation, develop an idea, plan his writing, and draft a short written work. Tr. 50; Ex. O at ⁋ 22.
  • • In math, REDACTED learned basic addition and subtraction and began to understand basic mathematical concepts. Tr. 50; Ex. C at 1, Ex. D at 1, Ex. O at ⁋ 24.
  • • REDACTED needed multi-sensory and hands-on learning. Ex. C at 1. REDACTED’s teachers provided such instruction. Ex. O at ⁋⁋ 16-17.
  • • REDACTED had difficulty focusing and was easily distracted; he needed a behavior modification program to remain regulated and attend to learning; he responded well to positive reinforcements in the classroom and benefitted from a small class and individualized attention. Ex C at 1, Ex. D at 1, Ex. O at ⁋⁋ 17-18.
  • • His focus, attention and classroom behavior improved in the school’s small, structured environment with a positive reinforcement system. Tr. 51, 63-64.
  • • The school provided REDACTED with the related services of speech, OT and counseling. All of the related services providers were appropriately licensed. Tr. 54.
  • • Speech therapy targeted REDACTED’s expressive language skills by focusing on answering “WH” questions, receptive language by answering comprehension questions about key details of a short story, and pragmatic language skills through interactive group activities. Ex. E.
  • • REDACTED made progress through speech therapy: improved abilities to follow one and two-step directions, attention, and answering questions about a story. Ex. E, Ex. O at ⁋⁋ 29-30.
  • • Occupational therapy targeted handwriting, endurance, and self-regulation. Ex. F.
  • • REDACTED made progress through occupational therapy in terms of improved handwriting, grasp, posture and self-regulation. Ex. O at ⁋⁋ 26-27.
  • • Counseling targeted expressing emotions, self-regulation, listening and following instructions. Ex. G.
  • • REDACTED made progress in using his words to express his emotions, self-regulation, listening to directions and following instructions. Ex. G, Ex. O at ⁋ 26-27, Ex. O at ⁋⁋ 31-32.
  • • During the 2020-2021 school year, REDACTED made progress in academics, behavior and social interactions skills. Exs. H, I; Ex. O at ⁋⁋ 35-37.
  • • REDACTED’s mother entered into an enrollment contract with REDACTED REDACTED for REDACTED’s attendance at the school for the 2020-2021 school year. As per the contract, the tuition was $47,895.00 and an additional amount of $9,000.00 was charged for related services. Under the enrollment contract, REDACTED’s mother is obligated to pay these amounts in full. Ex. J.
  • • REDACTED’s mother had paid $3,870.00 to REDACTED for the 2020-2021 charges. Ex. K.
  • • REDACTED’s mother is not presently able to pay the full amount of the tuition and fees at the current time. Ex. M.
  • • REDACTED’s parents remain responsible for pay the entirety of the REDACTED tuition for the 2020-2021 school year. Tr. 65; Ex. P at ⁋⁋ 22-25.
  • • REDACTED’s mother submitted a ten-day notice letter to the DOE on August 24, 2020. Ex. N.

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 must be “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.

Did the Department Offer REDACTED a FAPE?

Since the Department did not avail itself of its opportunity to offer testimony (or evaluations or other evaluative material concerning REDACTED) 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.

Is REDACTED REDACTED’s Program Appropriate for REDACTED?

The parent 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 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 his identified special education needs were addressed through individualized goals and interventions targeted to address his reading, math, attentional, executive functioning and behavioral challenges, and he made progress. REDACTED addressed REDACTED’s needs as described in paragraphs 10-12, 16-18, 22-25,

28, 30 and 32 above. REDACTED made progress at REDACTED during the 2020-2021 school year, as described in paragraphs 19-21, 26, 29, 31, 33 and 34 above.

At REDACTED, REDACTED made progress across the range of his challenges, clearly demonstrating that REDACTED was 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).

The Department argues that REDACTED was “overly restrictive” for REDACTED because he was “almost receiving one-on-one service” in the classroom. Tr. 71-72. The record and the law do not support this assertion. While REDACTED received one-to-one support as needed in the classroom, he did not work with a full-time one-to-one paraprofessional, as recommended in the Department’s IEP. Furthermore, parents are not held to the same standards as school districts as to restrictiveness of placements. C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 839-840 (2d Cir. 2014).

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 2020-2021 school year. As a result, REDACTED’s parent prevails with respect to the second Burlington/Carter criterion.

As to REDACTED’s parent’s request for transportation, I find that this claim is moot because the 2020-2021 school year has concluded, and there is no relief that I could provide at this time. Furthermore, REDACTED’s need for specialized transportation was not litigated at the hearing.

The Equities With respect to the third Burlington criterion, whether equitable considerations support the parent’s claims, the evidence establishes that REDACTED’s parent cooperated with the CSE by attending CSE meetings, communicating with Department personnel, expressing her concerns about the IEP and the proposed placement to the CSE 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 parent has paid not paid the REDACTED tuition and related services charges in full, the debt for the full amount of the tuition and related services charges is very real. REDACTED’s parents are unable to pay the total REDACTED total tuition and related services charges up front and then seek reimbursement from the Department. A hearing officer may, where the other requirements of Burlington and Carter permit, order prospective payment 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 private school tuition and subsequently seek repayment from the school district. Equitable considerations favor the award of relief to REDACTED’s parent. As a result, REDACTED’s parent prevails with respect to the third Burlington/Carter criterion.

In addition, the fact that REDACTED is an institution where religion is celebrated with the students does not, in itself, render the school an inappropriate special education placement nor bar tuition reimbursement to the parent. See Application of a Child with a Disability, Appeal No. 96-14. 85 percent of the school week is spent engaged in non-religious subjects, and an impartial hearing officer may grant tuition reimbursement for tuition that could reasonably be construed as not funding religious education. As a result, 85 percent of the tuition is subject to payment in this proceeding. I will award 100 percent of the charges for related services.

Therefore, for all the above reasons, it is ORDERED that:

The Department of Education shall fund REDACTED’s placement at REDACTED for the 2020-2021 school year. The amount of funding shall not exceed $ 49,710.75. The funding shall be reimbursement to REDACTED’s parent for any amounts she has paid to REDACTED and direct payment to REDACTED for any remaining balance.

Dated: October 14, 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

Department of Education Evidence List

EXHIBIT

DATE

NAME

PAGES

1

6/16/2020

IEP

28

2

8/1/2020

Prior Written Notice (Notice of Recommendation)

13

Parent Evidence List

EXHIBIT DATE DOCUMENT TITLE # OF PAGES

A 5/31/22 Due Process Request 6

B 2020-2021 Academic Goals 7

C 1/17/21 Teacher Report 1

D 6/2021 Teacher Report 1

E 1/2021 Speech Therapy Report 2

F 5/24/21 OT Progress Report 2

G 5/2021 Counseling Progress Report 1

H Semester 1 Progress Report 2

I Semester 2 Progress Report 2

J 9/9/20 Tuition & Related Services Contract 5

K 7/12/22 Affidavit of Payment 1

L 2020-2021 Class Schedule 1

M 2020 Tax Return 2

N 8/21/20 Ten-Day Notice 4

O 9/6/22 Testimony Affidavit- REDACTED 6

P 9/6/22 Testimony Affidavit- REDACTED 3

Footnotes

[1] The written schedule in evidence (Ex. L) does not reference counseling; however, witness testimony and the documentary evidence established that REDACTED received weekly group counseling at REDACTED. Tr. 43, 60; Exs. F, O, P.