New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 574692 - NYC: 227507

FINDINGS OF FACT AND DECISION

Student's Name: REDACTED

School District: REDACTED

Hearing Requested By: Parent

Record Closed Date: March 14, 2023

Hearing Officer: Dora M. Lassinger

The student’s parent filed a request for an impartial hearing on July 1, 2022 challenging the Department of Education’s (“DOE”) failure to recommend any school placement for the 2022-2023 school year, and requesting funding for the student’s unilateral placement at the REDACTED (“the private school”) for the 2022/2023 (12 month) school year, including funding during the pendency of due process proceedings. (Par. Ex. A). I was designated to hear this matter on July 11, 2022, pursuant to 20 U.S.C. Section 1415(f)(1).

On July 28, 2022, the DOE agreed that the student was entitled to funding at the private school, effective July 1, 2022, and during the pendency of due process. (Par. Ex. N). ^[1]

A pre-hearing telephone conference was held on August 10, 2022. The compliance date was extended three times, while the parties pursued a settlement. Ultimately, the case proceeded to hearing on February 8 and 17, 2023. There were additional extensions of the compliance date for trial preparation and due to availability of witnesses; with a final compliance date of April 11, 2023. (IHO Ex. I). Although the DOE was initially represented by counsel, counsel did not appear for a January 3, 2023 status conference or for either hearing date; and the hearing proceeded in the DOE’s absence. (Tr. pp. 10, 15, 20, 33).

Parent’s Position

The parent’s position is that no IEP was developed for the current school year and the DOE failed to sustain its burden of proof; that the parental placement continues to be appropriate, and that the equities favor funding for tuition at the private school for the 2022/2023 school year. (Tr. pp. 49-56).

Evidence at Hearing

The student struggled in school from his third-grade year. He was referred for evaluation in April 2019. During the 2019-2020 school year, he received an IEP, and was placed in Integrated Co-Teaching (“ICT”) classes. Nevertheless, he continued to struggle in that setting. (Par. Ex. L, M)

An IEP meeting was held on May 22, 2020 and the parent participated in the meeting. Although the parent requested a smaller setting, the CSE continued to recommend placement in ICT classes. (Par. Ex. M).

A neuropsychological evaluation was performed in June and July 2020. The student was diagnosed with Attention-Deficit/Hyperactivity Disorder (“ADHD”), Specific Learning Disorders, with impairment in reading, written expression and math, and a Developmental Coordination Disorder. It was recommended that he be placed on a small, structured and supportive classroom, within a small school environment that can offer him frequent, individualized special education supports for his deficits in reading, writing, math, organization and planning. (Par. Ex. C).

The parent testified that the evaluator recommended several schools, including the private school; and that she enrolled him at the private school in the fall of 2020. The parent noted his progress academically, and in his positive attitude toward school. She testified that the DOE has not held an IEP meeting for the student since April 2021. She therefore decided to re-enroll him at the private school for the 2022-2023 school year. She testified that he continues to make progress there. She testified that with a household income of $75,000.00 for four people; she is unable to front the tuition at the private school and seek reimbursement. (Par. Ex. L).

On June 27, 2022, the parent signed a contract agreeing to pay $87,980 for the student’s tuition at the private school for the twelve month 2022-2023 school year ($7,990 for the summer program and $79,900 for the regular school year. (Par. Ex. E, F). The parent paid $100.00 toward the tuition. (Par. Ex. F).

On June 17, 2022, the parent (by her attorney) wrote to the CSE stating that in the in the absence of an IEP for her son, she intended to enroll him at the private school, for a twelve month school year, and seek funding. (Par. Ex. B).

The clinical director at the private school testified (by affidavit) that she has a doctorate in clinical psychology and is a licensed psychologist in New York State.

She testified that the student continues to struggles with ADHD, executive functioning weaknesses, and multiple specific learning disorders in reading, writing and math. (Par. Ex. K).

The private school is a therapeutic day program, which provides individually formulated support in a structured environment. The private school is staffed with four doctoral level psychologists and a doctoral-level psychology intern. The school serves students with ADHD and learning issues. Counseling is available on-demand. The student participates in two weekly groups; a DBT (Dialectical Behavior Therapy) skills group, and a group that focuses on future planning; both of which are facilitated by a licensed psychologist.

The student’s classes have two to twelve students per class, with similar cognitive and social emotional functioning. All four core subject teachers have master’s degrees and are certified teachers.

The private school has a full-time learning specialist on staff who meets with all faculty and provides training and strategies for effectively working with students who have specific learning disorders and executive functioning needs. The learning specialist is also available for one-to-one support to students. The student’s teachers use multiple strategies to ensure his understanding of the material.

The student attends advisement group meetings three times each day. During these meetings, he receives support for executive functioning, self-advocacy, and coping skills. He also meets with his advisor, on an individual basis, each week.

The clinical director testified that when he started at the private school, the student showed significant symptoms of anxiety and depression related to his academic functioning and interpersonal relationships; but that his symptoms have significantly improved, and he has made significant strides academically, achieving mostly “A’s” and “B’s”. During the current school year, he has increased his socialization and become more involved in extra-curricular activities.

She testified that he continues to require academic and clinical support, on a 12-month basis, and that the private school is an appropriate placement for him for the 2022/2023 school year. (Par. Ex. K).

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 the student’s 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). 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).

I find that the DOE failed to meet its burden of proving the appropriateness of its recommendations and programs for the 2022/2023 school year. The DOE failed to appear at hearing, or present any evidence to support its recommendations. The parent’s testimony that the student was not offered any program for the current school year was not challenged or contradicted.

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).

I find that that the parent demonstrated that the program at the private school was specially designed to meet the student’s unique needs, and was consistent with the recommendations of the neuropsychologist. The school provides the student with small classes, counseling, support groups and a learning specialist. He also receives support for executive functioning, self-advocacy, and coping skills during advisement periods, which are held three times each day. The student has progressed academically and has shown significant improvement in his social/emotional functioning.

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 whether the parent participated in the IEP meeting, visited the proposed placement and provided timely notice of her intent to place the student in a private school. See M.H. and E.K. v. New York City Dept of Education, 685 F 3d 217 (2d Cir. 2012

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 tuition (above the $100.00 deposit which she paid) and seek reimbursement.

The record indicates that the parent cooperated with the DOE by providing notice of her intention to unilaterally place the student at the private school and seek funding.

For the reasons set forth above, I find that the parent is entitled to be reimbursed $100.00 and that the DOE should directly fund the balance of the student’s tuition at the private school for the 2022/2023 school year, in the amount of $87,790.00 (to the extent payment has not already been made pursuant to the pendency agreement).

ORDER

For all of the foregoing reasons, it is hereby ordered that the DOE shall, by March 31, 2023: (1) Reimburse the parent $100.00, on account of her payment toward tuition for the 2022/2023 school year; (2) Directly fund the balance owed for the student ’s tuition at the private school (12-month program) in the amount of $87,790.00 for the 2022/2023 school year, to the extent payment for tuition has not already been paid pursuant to the pendency agreement.

Dated: March 15, 2023 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 EXHIBITS

PARENT’S EXHIBITS

REDACTED

Footnotes

[1] The pendency agreement was based upon a Decision dated July 20, 2021 (Case No. 206132). In a subsequent decision dated June 30, 2022, (Case No. 219102), tuition was awarded for the 12-month 2021/2022 school year, (Par. Ex. O).