New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 574979 - NYC: 227767

FINDINGS OF FACT AND DECISION

Case Number: 227767

Student’s Name^[1] [REDACTED] (“Student”)

Date of Birth: [REDACTED]

School District: [REDACTED]

Hearing Requested by: [REDACTED] (“Parent”)

Request Date/Date Complaint Filed: July 1, 2022

Date(s) of Hearing: August 11, 2022, November 7, 2022

Actual Record Closed Date: November 29, 2022

Date of Decision: December 12, 2022

Hearing Officer: Lisa S. Rusk, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 11, 2022

For the Student:

[REDACTED], Attorney, [REDACTED]

[REDACTED] Attorney, [REDACTED]

For the Department of Education:

No one

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 7, 2022

For the Student:

[REDACTED] Attorney, [REDACTED]

[REDACTED] Attorney, [REDACTED]

[REDACTED] Attorney, [REDACTED]

[REDACTED], Parent

[REDACTED], Associate Head of Educational Programs, [REDACTED]

[REDACTED] Consulting Teacher, [REDACTED]

For the Department of Education:

[REDACTED] Attorney

INTRODUCTION AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) by Parents’ Due Process Complaint (“DPC") dated July 1, 2022 (Ex. P-A)^[2]. The DPC alleges the District failed to provide a Free Appropriate Public Education (FAPE) to the Student for the 2022-23 school year and seeks payment for the Parent’s unilateral placement of the Student at [REDACTED] (hereinafter referred to as “the private school”). There is no record of a response to the DPC by the District. The undersigned was appointed as impartial hearing officer (“IHO”) on July 12, 2022. Notice of a prehearing conference on August 1, 2022 was sent to both parties via email on July 12, 2022. The prehearing conference was held on August 1, 2022. Parent’s counsel requested a pendency hearing, and such was held on August 11, 2022. Parent Exhibits A-D were entered into evidence. The District did not appear at either the prehearing conference or pendency hearing. A pendency order was issued on August 11, 2022.

At the request of Parent’s counsel, status conferences were held on September 12, 2022 and October 4, 2022. At the October 4, 2022 conference this IHO was advised that the matter still remained under investigation by the District, and a hearing was scheduled for November 7, 2022. The hearing commenced on November 7, 2022. The District did not introduce any exhibits or present any witnesses (T:41). Parent Exhibits E-R were admitted into evidence^[3]. The Parent testified and presented two witnesses. Neither party made a closing statement or submitted a closing memorandum of law.

JURISDICTION

The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.

BACKGROUND

The Student is an [REDACTED] year old male who was unilaterally placed at the private school by the Parent for the 2022-23 school year. The Student has been classified as a student with autism by the District’s Committee on Special Education (CSE) (T:85) He has been attending the private school since the 2012-13 school year (T:87). The DPC alleges that the CSE failed to develop an appropriate Individualized Education Program (“IEP”) for the 2022-23 school year.

ISSUES

The Parent alleges that the District’s IEP is inappropriate on its face and that it failed to recommend a 12-month program for the Student for 2022-23(Ex. P-A-1).

The Parent seeks funding for her unilateral placement at the private school where the Student has attended for the 10 prior school years at District expense.

FINDINGS OF FACT

The District presented no case in support of Prong I of the Burlington/Carter case, but the 2022-23 IEP is in evidence as Ex. P-H. The most recent psychoeducational testing in the record is from 2013 and indicates a full scale IQ of 66. The Student’s standardized academic achievement scores at that time ranged from a standard score of 62 in math calculation and passage comprehension and 87 in reading fluency (Ex. P-H-2). His current academic functioning noted on the District’s 2022-23 Individualized Education Program (IEP) was as reported by the private school, as there did not appear to be any updated District evaluations or reports (Ex. P-H-2-6). The CSE recommended placement in a 12:1:1 classroom and participation in all academic classes, extracurricular and nonacademic activities in a specialized school setting (E. P-H-27). His significant delays in academic, cognitive and communication skills preclude him from participating in regular assessments. He requires a highly specialized educational program that facilitates the acquisition, application and transfer of skills across the natural environments (Ex. P-H-26-27).

The Parent testified that the Student was diagnosed with autism and ADHD in 2007. He requires constant redirection and constant support to complete tasks (T:85). Prior to attending the private school, the Student attended school in District at [REDACTED]. The Parent testified that he struggled a great deal, and his behaviors became unmanageable at school (T:86-87). She testified that he has been at the private school for 10 years and that he has moved into their transition program. The District has paid the Student’s tuition at the private school for the past 10 years (T:88)^[4]. For 2022-23, the Parent decided to reenroll the Student at the private school where he had been successful for many years, because she attempted to contact the District’s recommended placement on several occasions and never received a response (T:94-95). She testified to the supports the private school has put into place for the Student and the progress she has witnessed during his attendance at the private school (T:95-96).

[REDACTED], the Associate Head of [REDACTED], (hereinafter referred to as “the Associate Head”) testified that she is a New York State certified School Building Leader and licensed social worker and had been employed by the private school in various positions since 2009 (Ex. P-P-1-2). She is not a certified teacher (T:58). She testified that the private school serves student with moderate to severe developmental or cognitive disabilities in highly individualized programs (Ex. P-P-2). The private school’s transition program offers academic instruction with integrated related services, vocational supports, clinical services and differentiated instruction within academic content areas for students aged 18-21 (Ex. P-P-2-3).

The Associate Head testified that she is familiar with the Student as he has attended school at the private school since the 2012-13 school year. He is eager to learn, requires continuous support for academic classes, access to sensory tools and a small, structured learning environment. His 2022-23 classroom consists of 13 students, 1 head teacher, 1 assistant teacher and 1 paraprofessional. The students are of similar age, functioning and needs. The head teachers all have graduate degrees or are in master’s programs. All assistant teachers have bachelor’s degrees (Ex. P-P-3-4).

The Student made great progress learning and developing social and emotional skills with supports during the prior school year as reflected in his report cards, and he continues to make meaningful academic progress (Exs. P-P-4-5, P-E and F). During the Summer 2022 program, the Student progressed in his ability to be an engaged learner and active participant in class discussions. He demonstrated a positive demeanor and worked hard to advance his understanding of problem-solving skills (Ex. P-P-5-6, see also Ex. P-G).

During the 2022-23 school year, he is receiving speech and language therapy, occupational therapy and counseling as related services. He receives both individual and small group sessions. His counseling sessions have worked on executive functioning, disability awareness, relationships and community safety. He attends an internship experience for four hours per month. He receives 2:1 staff support to assist him in completing his vocational tasks and develop professional skills (Ex. P-P-7-8). She testified on cross-examination on how students are taught self-advocacy skills as the private school (T:58-59). She also reviewed the Student’s weekly schedule (T:63-70; Ex. P-N).

The Associate Head attributed his increased attention and engagement to the small class size and significant staff support both in small groups and during 1:1 instruction. He receives targeted, integrated related services instruction to assist in his academic development, use of language, shared activities, problem solving and related services goals. His program focuses on his academic, social/emotional and vocational needs (Ex. P-P-8).

Consulting teacher [REDACTED] testified that she has worked in the education field for over 25 years and as a consulting teacher at the private school since 2010. She holds a postgraduate certificate in secondary education and a post graduate diploma in speech and language difficulties in the classroom (Ex. P-Q-1-2). She is not certified in regular education or special education and does not teach the student (T:73-74). She has observed the Student in the classroom at various times since he was in 9th grade (T:74). She testified that she works as a liaison between the District and private school and that she attended a CSE meeting for the Student by telephone on January 18, 2022 along with the Parent and the Student’s ELA teacher from the private school. His ELA teacher reported that he was currently reading on a 2nd-3rd grade level. The consulting teacher reported his math computation to be at the 3rd to 4th grade level. His reading teacher discussed working on the development of reading comprehension and writing strategies. In math he was working on real world problem solving using the four computational operations. She and the Parent also reported on his social and emotional needs, speech and language and occupational therapy progress and management needs. The consulting teacher emphasized the need for a collaborative model for the Student to make progress, and her concern that he would regress without the structure and routine of the private school (Ex. P-Q-4-7).

She testified that he has progressed in terms of his functional skill levels, including his financial literacy and functional literacy in the community. He has also increased his executive functioning and daily living skills in the transitions program working towards greater independence (T:78-79).

The Parent executed a contract with the private school for the 2022-23 school year on May 4, 2022 (Ex. P-3). The Parent is obligated to pay the agreed to tuition. She testified that the 2022-23 school year tuition, including the two summer school sessions, is $98,725. The tuition is more than her annual salary, and she is unable to afford it (T:89).

CONCLUSIONS OF LAW

The IDEA provides that children with disabilities are entitled to a FAPE (20 U.S.C. § 1400 [d][1][A]). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written IEP (34 C.F.R. § 300.13). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances” Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988 (2017). If a procedural violation has occurred, relief is warranted only if the procedural violation affected the student's right to a FAPE. 8 NYCRR §200.5[4]; J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 (2d Cir. 2000).

In New York State, school districts have the burden of proof, including the burden of persuasion and burden of production in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement or payment for services for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement (NYS Educ. Law § 4404(1)(c)). (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School Dist. Four v. Carter, 510 US 7 [1993]). In addition, in order to receive tuition reimbursement, the equities must weigh in favor of the parent.

Since the District in this case has failed to demonstrate it offered the Student a FAPE under the First Prong of the Burlington/Carter test, the burden shifts to the Parent to prove that the services provided by the private school are appropriate to meet the Student’s special education needs and that the equities weigh in the Parent’s favor.

In order to meet her burden, the Parent must establish, by a preponderance of the evidence, that the unilateral placement provided “educational instruction specifically designed to meet the unique needs of the student” (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 [2d. Cir. 2007]. However, the private school placement “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements” (Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d. Cr. 2006]. The private placement need not provide certified special education teachers or an IEP. Parental placements are not subject to the same mainstreaming requirements as a school district placement. The private school placement must be reasonably calculated to enable the child to receive educational benefits, and must be likely to produce progress, not regression.

The standard to apply is whether "[the] unilateral private placement... provides educational instruction specifically designed to meet the unique needs of a handicapped child" Gagliardo, 489 F.3d at 115):

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).

Finally, equitable factors must weigh in the favor of the parents in order to qualify for an award of tuition reimbursement.

Where parents “lack the financial resources to ‘front’ the costs of private school tuition, and in the rare instances where a private school is willing to enroll the student and take the risk that the parents will not be able to pay tuition costs – or will take years to do so- parents who satisfy Burlington factors have a right to retroactive direct tuition payment relief” (Mr. and Mrs. A. v. New York City Dept. of Educ., 769 F.Supp. 2d 403,428 [SDNY 2011].

ANALYSIS

Based upon a thorough review of the testimony and evidence as outlined above, I find that the District failed to meet its burden that it offered the Student a FAPE for the 2022-23 school year, and the Parent has met her burden of demonstrating that the private school provided the Student with specific instruction to address his special education needs while enabling him to make meaningful educational progress in early learning, communication and social skills commensurate with his significant educational disabilities. Although the record is sparse, and no evidence of District evaluative material was entered into the record^[5], the testimony and exhibits provided by the Parent set forth evidence of the provision of specific instruction by the private school to meet the Student’s needs. The uncontroverted testimony was that he has made progress in the private school program and that he requires a 12-month program. His progress is commensurate with his significant delays and extensive needs as noted on the IEP.

Turning to the equities, the record evidence indicates that the equities weigh in the favor of the Parent. There is no evidence that the Parent acted unreasonably or failed to cooperate with the District. She attended the CSE annual review meeting and provided reports from the private school. She timely advised the District of her dissatisfaction with its failure to offer an appropriate program and placement for the 2022-23 school year and of her intent to seek funding (Ex. P- L).

The total amount owed the private school for the 2022-23 school year is significant. The Parent’s testimony that she lacks the financial resources to ‘front’ the costs of private school tuition is uncontroverted. Based upon the undisputed evidence presented, the Parent does not have the financial resources to fund the tuition for the Student. The Parent is entitled to direct funding by the District for the 2022-23 school year, effective July 1, 2022.

ORDER

Based upon the above Findings of Fact and Conclusions of Law, it is hereby:

• • ORDERED that the District shall directly pay to the private school within thirty (30) days of the date of this decision the twelve-month tuition owed to the private school for the 2022-23 school year.

SO ORDERED.

DATED: December 12, 2022

Lisa S. Rusk

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 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.

APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

EXHIBIT LIST

Exhibit Number

Description

Pages

A Impartial Hearing Request, dated 7/01/2022 4 Pages

B Findings of Fact and Decision, dated 8/22/2016 16 Pages

C Stipulation of Settlement, dated 1/18/22 5 pages

D Pendency Program, dated 11/30/21 2 Pages

E 2021/2022 First Semester Report Card 32 Pages

F 2021/2022 Second Semester Report Card 35 Pages

G 2022 Summer Progress Report 7 Pages

H 2022-23 IEP 31 Pages I Placement Recommendation for 2022-23 8 Pages

J Signed contract between the Parent and the School 3 Pages

K 2022 Attendance Records 1 Page

L 2022-23 10-Day Letter 2 Pages

M Tuition Affidavit 1 Page

N Fall 2022 Class Schedules 1 Page

O Pendency Order for 2022-23 School Year 8 Pages

P Affidavit of [REDACTED] offered in lieu of direct testimony 11 Pages

Q Affidavit of [REDACTED] offered in lieu of direct testimony 7 Pages

R

Summer 2022 Attendance Report – July and August Sessions

1

Footnotes

[1] Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.

[2] Exhibits shall be referred to as follows: “P” for Parent’s Exhibit; “D” for District’s or Department’s Exhibits; and “IHO” for Impartial Hearing Officer’s Exhibits. Exhibits will be followed by the exhibit number and page numbers as needed and appropriate.

[3] Parent Exhibit R, the Student’s Summer Attendance Record was supplemented via email following the hearing at the request of the IHO and without objection by the District (T:63).

[4] An IHO ruled in the Parent’s favor by decision dated August 22, 2016 (Ex. P-B).

[5] Responsibility for such deficiency lies with the District (see Application of a Student with a Disability, Appeal No. 21-194 at pg. 17).