New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 574089 - NYC: 227027

FINDINGS OF FACT AND DECISION

Student’s Name: REDACTED

Date of Birth: REDACTED

Service District: REDACTED

Home District: REDACTED

Region: REDACTED

Hearing Requested By: Parents

Dates of Hearing: August 1, 2022

September 1, 2022

October 3, 2022

November 2, 2022

December 1, 2022

December 14, 2022

January 31, 2023

Actual Record Close Date: March 17, 2023

Hearing Officer: Maria R. Dispenza, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

August 1, 2022

For the Student:

REDACTED Parent Attorney

For the Department of Education:

REDACTED DOE IHRO Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

September 1, 2022

For the Student:

REDACTED Parent Attorney

For the Department of Education:

REDACTED DOE Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

October 3, 2022

For the Student:

REDACTED Parent Attorney

For the Department of Education:

REDACTED DOE Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

November 2, 2022

For the Student:

REDACTED Parent Attorney/Law Clerk

For the Department of Education:

REDACTED DOE Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

December 1, 2022

For the Student:

REDACTED Parent Attorney

For the Department of Education:

REDACTED DOE Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

December 14, 2022

For the Student:

REDACTED Parent Attorney

REDACTED Parent Attorney/Law Clerk

For the Department of Education:

REDACTED DOE Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

January 31, 2023

For the Student:

REDACTED Parent Attorney

REDACTED Parent/Father

REDACTED High School Head @ REDACTED School

For the Department of Education:

REDACTED DOE Consultant Representative

INTRODUCTION

On June 23, 2022, New York City Department of Education (DOE) appointed me to act as the impartial hearing officer (IHO) in a case brought under the Federal Individuals with Disabilities Education Act (IDEA) [20 USC §1415(f)(3)] (“IDEA”) by the parent (Parent) of REDACTED (REDACTED) for the school year 2021/22. The Parent requested the hearing by filing an impartial hearing request with DOE on or about June 22, 2022. The DPC is carried under New York City (“NYC”) Case No: 227027. The impartial hearing was held over a series of dates, to complete the record on January 31, 2023. The timelines have also been extended to allow the parties opportunity to fully prepare, secure witnesses and obtain transcripts. The record officially closed on March 17, 2023. A list of persons who appeared at the hearing and the documents entered into evidence is annexed hereto.

BACKGROUND AND POSITION OF BOTH PARTIES

REDACTED is a student diagnosed with ADHD, Specific Learning Disorder and Speech Language and Motor Impairments and presents with a variety of significant deficits and interfering behaviors. He is classified by the Department of Education (DOE) with “Other Health Impairment” (Exhibits A, S, T and U). Parents allege REDACTED’s deficits are pervasive and global and transcend behavioral, communication, social and physical domains (Exhibit A). REDACTED attended REDACTED (REDACTED) for the 2021/22 school year. On 07/27/21, the DOE convened an IEP meeting to develop an educational program for REDACTED for the 2021/22 school year. Parents allege the DOE failed both procedurally and substantively to offer REDACTED a free and appropriate public education (FAPE) and enumerate an extensive series of allegations in the DPC, as well as alleging never receiving a copy of the IEP that was developed and that upon receiving a School Location Letter on 08/27/21 attempted to contact the school both telephonically and via emails, but that the proposed school failed to return any of their attempts at contact (Exhibits A and U). The parents alerted the DOE of their concerns. The DOE failed to respond or take any appropriate steps to attempt to rectify the issues of concern to Parents. As such Parents advised the DOE of their intent to have REDACTED continue at REDACTED for the 2021/22 school year (Exhibits B and C). Subsequently, the Parents filed a DPC, seeking (1). tuition and costs for REDACTED’s enrollment at REDACTED for the 2021/22 school year; (2). transportation or transportation costs; (3). 90 minutes of social skills group per week; and (4). two 45 minute Speech and Language sessions per week.

At the hearing, the DOE while not formally conceding to failing to provide REDACTED with a FAPE for the 2021/22 school year, merely rested without the submission of any documentary evidence or presentation of any witness testimony (T @ 28-29, 38) stating:

“The District will not be presenting a case to defend the school year at issue or presenting witnesses” (T @ 28-29).

The DOE did opt to briefly cross-examine Parents witnesses and opted not to present either an opening or a closing statement (T @ 56).

In an effort to support their position, the parents presented two (2) witnesses: REDACTED – High School Head Teacher at REDACTED via affidavit and available for cross-examination, and REDACTED, REDACTED’s father, along with twenty-one (21) pieces of documentary evidence (Exhibits A–U). At the hearing Parent counsel limited their requested relief to reimbursement of tuition and costs for REDACTED’s attendance at REDACTED for the 2021/22 school year and waived all other requested relief in the DPC (T @ 43-44, 54 and 56).

FINDINGS OF FACT AND DECISION

The Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) was enacted with the primary purpose to ensure that students with disabilities have available to them a free and appropriate public education (FAPE) (20 U.S.C. § 1400[d][1][A]; see Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]; Bd. of Educ. v. Rowley, 458 S. Ct. 176, 179-81, 200-01 [1982]; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [2d Cir. 2006]). It is clear that the legislative intent of 20 US Code Section 1412 of the IDEA is to provide a FAPE to all children with disabilities so that these individuals may ultimately lead productive independent lives as adults, to the maximum extent possible (20 U.S.C. Sx 1400[d][1][A]; see Mrs. W v. Tirozzi, 832 F.2d 748 [2nd Cir. 1987]. A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (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). An IEP is designed as a "written statement" that addresses the educational needs of a child with a disability (20 U.S.C. § 1401[14]; 34 C.F.R. § 300.22; 8 NYCRR 200.1[y]). At the beginning of each school year, a school district is required to have an IEP in effect "for each child with a disability in its jurisdiction" (20 U.S.C. § 1414[d][2]; 34 C.F.R. § 300.323[a]; see also Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 194 [2d Cir. 2005] (finding the district fulfilled its legal obligations by providing the IEP before the first day of school). The student's recommended program must also be provided in the least restrictive environment (LRE) (34 C.F.R. § 300.114[a]; 8 NYCRR 200.6[A][1]). A FAPE is offered to a student when the board of education (a) complied with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. at 176, 206, 207 [1982]). The IDEA directs that, in general, a decision by an impartial hearing officer or state review officer must be made on substantive grounds based on a determination of whether or not the child received a FAPE (20 U.S.C. § 1415[f][3][E][i]). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a FAPE to the child, or (c) caused a deprivation of educational benefits to the child (20 U.S.C. § 1415[f][3][E][ii]; see 8 NYCRR 2005[j][4][ii]). The IDEA mandates that a student with a disability be provided with a FAPE tailored to meet his unique needs and one that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas Cty. Sch. Dist., 580 U.S. ___, 137 S.Ct.988, 999 (2017). A focus on the particular child is at the core of the IDEA. Endrew F., 137 S.Ct. at 999. Under 20 U.S.C. Section 1414(d)(3)(A), the IDEA mandates an IEP team to consider a child’s strengths, weaknesses and deficiencies, as well as the results of the most recent evaluations of the child together with developmental and functional needs of the child. In order to determine the student’s requirements and needs, the team must review and consider evaluations, assessment and information provided by the child’s parents, teachers and service providers and thereon determine the type of program required for the child. A board of education may be required to pay for educational services obtained for a child by the child's parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim. (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; see also Frank R. and Dianne R. v. Bd. of Educ. of Hyde Park,459 F.3d 356 [2d Cir. 2006], cert denied, Board of Educ. of Hyde Park Cent. School Dist. v. Frank R.,2007 WL 2982269 [Oct. 15, 2007]. The case at hand is a tuition reimbursement case and is therefore governed by the holding of the U.S. Supreme Court in Burlington School Comm. v. Dept of Education (471 U.S. 359 [1985]). That case set forth a three-prong test for determining if tuition reimbursement is warranted: (1) were the services offered by the school district inadequate or inappropriate; (2) where the services selected by the parents appropriate; and (3) do equitable considerations support the parents’ claim. Recently enacted state legislation puts the burden of proof for the first prong on the school district and for the second prong on the parent (Chap. 583 of Laws of 2007).

Prong I:

An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the child’s needs, establishes annual goals and short-term instructional objectives which are related to the child’s educational deficits, and provides for the use of appropriate special education services to address the child’s special education needs. Application of a Child with a Disability, Appeal No 93-12; Application of a Child with a Disability, Appeal No 93-9; Application of a Child with a Handicapping Condition, Appeal No 92-7; Matter of Handicapped Child, 22 Ed Dept Rep 487, March 11, 1983. The SRO has found that allegations that are left unchallenged are deemed as true “unless found to be inconsistent with the evidence in the record.” Application of a Student with a Disability, 01-044 (SRO March 27, 2002). The DOE’s silence at hearing has the effect of conceding every point alleged by the parent against the DOE unless it is inconsistent with the hearing record. Id.

In the case at hand, the DOE did not provide any witnesses or documentary evidence to rationalize its recommended program for REDACTED, merely resting and opting not to defend Parents allegations. Upon due consideration, I find the DOE failed to meet its affirmative burden of showing that it provided a FAPE to the Student for the 2021/22 school year by providing an appropriate IEP and placement for REDACTED, resulting in a denial of FAPE.

The Parents have met the first of the three Burlington/Carter criteria for tuition reimbursement. Prong II: Having determined that the DOE did not offer the student a FAPE for the 2020/21 school year, I now proceed to evaluating the appropriateness of the parents’ unilateral placement of the student at REDACTED. The parent’s failure to select a program approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Florence County Sch Dist Four v. Carter 510 U.S. 7 [1993]). The private placement need not employ certified special education teachers, Carter, supra. The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of the unilateral placement: “No one factor is necessarily dispositive in determining whether parents’ unilateral placement is reasonably calculated to enable the child to receive educational benefits. 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”. (Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).

In the case at hand, the DOE again did not provide any witnesses to rationalize its recommended program and placement for REDACTED. The DOE cross-examination of the parent witnesses did not raise material challenge to Parent’s contentions as to the appropriateness of the unilateral placement. Contrarily, the evidence and testimony presented by the Parents supports that REDACTED was an appropriate placement for REDACTED during the 2021/22 school year. The submitted documents state:

“At REDACTED, all students benefit from our small class sizes, low student-teacher ratio, and co and team-teaching models. Every student has an individualized academic plan, and instruction is differentiated based on the learning style, strengths, interests, and needs of the particular child. We offer a wide array of specialty and enrichment classes to all of our students……..REDACTED is an inclusion school. Students of varying abilities are integrated into all aspects of school life and are fully participating members of their class and the school community. Students are not pulled out of whole-class instruction to receive related services, therapies, or academic tutoring/enrichment” (Exhibit Q).

Herein, I credit the testimony (Exhibits T and U) and evidence (Exhibits F-K) submitted and find it establishes that the placement at REDACTED was appropriate as it provided a program and services that were directly related to REDACTED’s needs and one in which he was able to make meaningful progress. I find the evidence to substantiate the program at REDACTED to offer a small supportive environment with intensive 1:1 and small group instruction, modifications and supports required by REDACTED to make progress.

Mr. REDACTED credibly testified:

“At all times, we were very open to considering a DOE recommended program and placement for REDACTED”;

“During the 2021/22 school year, REDACTED made slow and steady progress towards working independently to manage his frustrations, keep his school work organized, and remain engaged in class”; and “The REDACTED School was an appropriate special education program and placement for REDACTED because the school and staff were able to provide REDACTED with the intensive individualized support in a small classroom setting, with related services, which he needed to make progress. In a larger class, REDACTED would be overstimulated, distracted, and frustrated” (Exhibit U).

REDACTED provided extensive testimony as to the individual program REDACTED developed for and that benefitted REDACTED (Exhibit U). She attested:

“….REDACTED is for students that need an enhanced level of academic, behavioral, and related services. This additional support includes: small group ELA and Math classes; two co-teachers in history and science; inclusion where students are not pulled out of whole-class instruction to receive support; a teaching team that includes dedicated learning specialists and general educators, who work together to make the appropriate curricular and other adaptations for the student; 1:1 and small group sessions of speech and language therapy, occupational therapy, physical therapy, and academic tutoring/enrichment; individual counseling and social groups; embedded services and carryover throughout the academic day and across disciplines; a collaborative team approach to all aspects of the child’s education; extended conference time; support from school administration and faculty during the CSE process when appropriate”;

“During the 2020/21 school year REDACTED needed frequent support during his classes to remain focused and engaged as well as prompting to take breaks outside of the classroom to support his regulation”; and “Based on my professional opinion, experience, and interaction with REDACTED, I believe REDACTED was an appropriate placement for him. REDACTED’s program provides REDACTED with the individualized instruction he required, it included a small student-to-teacher ratio and learning specialists in a positive classroom environment in addition to integrated counseling, speech and occupational therapy sessions tailored to meet his needs. REDACTED was able to be a role model in class in areas of his strengths and benefit from the other role models for areas in which REDACTED struggled. The small size of REDACTED meant everyone in the building knew and interacted with REDACTED on a daily basis to make him feel supported by this environment. REDACTED made academic progress and steady growth in all academic areas”.

Based upon the foregoing, I therefore find that REDACTED was an appropriate placement for REDACTED for the 2021/22 school year. The record reflects REDACTED provided a rich supportive environment that correlated well with REDACTED, that the curriculum was specifically tailored to meet REDACTED’s needs and that he received a highly individualized instruction that enabled him to make appropriate progress. Based upon the foregoing, I find that the student made meaningful progress at REDACTED for the 2021/22 school year across the board: academically, socially and emotionally. The record reflects that REDACTED was a placement that was “specifically designed to meet the unique needs” of the student Frank G, supra and that REDACTED has made progress therein. Prong III:

Having found REDACTED an appropriate placement, I now consider equitable considerations, the final criterion for a reimbursement award. In weighing the equities, “the critical consideration, as the Court sees it, is whether they have cooperated in good faith to attempt to develop an IEP to the maximum extent possible, Schaffer, supra. There is nothing in the record to show that the Parents were anything other than cooperative. The DOE did not present any evidence or testimony or raise any equity considerations for the 2021/22 school year. All indications are that the Parents cooperated with the DOE and did not interfere in any way with the DOE’s obligation to provide a FAPE for the Student for the 2021/22 school year. REDACTED’s Parents put the DOE on notice of their concerns and of REDACTED’s unilateral placement and their intent to seek reimbursement (Exhibits B and C). Moreover, I credit that Parents made good-faith efforts at contacting and visiting the proposed DOE placement but that their efforts went by unanswered (Exhibit U).

I find (1). That the DOE failed to offer the student a FAPE for the 2021/22 school year; (2). the unilateral placement of the student at REDACTED to be appropriate and reasonably calculated to provide REDACTED with meaningful educational benefits; and (3). that equitable considerations weighed in favor of the Parents’ request for reimbursement for all costs associated with the placement of the student at REDACTED.

ORDER

Therefore, it is hereby ordered that

1. Within thirty (30) days of receipt of this Order, the DOE shall reimburse the tuition and all fees for the student’s placement at REDACTED for the 2021/22 school year in the amount of $83,600. All payments are to be documented by appropriate invoices and other proofs of billing and payment.

2. The Department of Education has an obligation to provide appropriate transportation to REDACTED to and from the unilateral placement.

Dated: March 20, 2023

Maria R. Dispenza

MARIA R. DISPENZA, ESQ.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

PLEASE TAKE NOTICE

Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party's request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part^[279] of the Regulations of the Commissioner of Education. A copy of the rules in Part

DOCUMENTATION ENTERED INTO THE RECORD ON January 31, 2023

A. Parent: Demand for Due Process and Email Confirmation, 06/22/22 – 9pp

B. 10-Day Letter and Email Confirmation, 06/17/22 – 2pp

C. 10-Day Letter with Email Confirmation, 08/18/21 – 3pp

D. Email from Parent to DOE, 08/10/21 - 1pp

E. Email from Parent to DOE, 09/02/21 – 2pp

F. REDACTED Q1 Report, 2021-22 -15pp

G. REDACTED Q2 Report, 2021-22 -11pp

H. REDACTED Q2 Therapy Report, 2021-22 -4pp

I. REDACTED Q3 Report, 2021-22 – 15pp

J. REDACTED Q4 Report, 2021-22 -11pp

K. REDACTED Q4 Therapy Report, 2021-22 – 4pp

L. REDACTED Enrollment Contract, 2021-22 – 5pp

M. REDACTED Affidavit and Proofs of Payments, 2021-22 – 4pp N. REDACTED and Classroom Schedules, 2021-22 -1pp O. REDACTED Hybrid and Distance Learning Plan, 2021-22 -6pp P. REDACTED Remote Learning Plan, 2021-22 -1pp

Q. REDACTED Program Description, 2021-22 -13pp

R. REDACTED Attendance Record, 2021-22, 1pp

S. Psychoeducational and Neuropsychological Evaluation By: REDACTED, PhD. Feb. 2021 -35pp

T. Affidavit of REDACTED, 01/24/23 -12pp

U. Affidavit of REDACTED, 01/29/23 -8pp

Footnotes

[279] and model forms are available at http://www.sro.nysed.gov.