New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 576139 - NYC: 228845

FINDINGS OF FACT AND DECISION

Case Number: 228845

Student’s Name: REDACTED

School District: New York City Department of Education Hearing Requested by: Parent Request Date/Date Complaint Filed: July 7, 2022

Date(s) of Hearing: August 10, 2022

September 16, 2022

October 17, 2022

November 1, 2022

November 9, 2022

November 15, 2022

Actual Record Closed Date: December 5, 2022

Date of Decision: December 19, 2022

Date of Distribution if Different than Decision Date: N/A

Hearing Officer: Jean Marie Brescia, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON August 10, 2022

For the Student:

REDACTED, Esq.

For the Department of Education:

None

NAMES AND TITLES OF PERSONS WHO APPEARED ON September 16, 2022

For the Student:

REDACTED, Esq.

For the Department of Education:

None

NAMES AND TITLES OF PERSONS WHO APPEARED ON October 17, 2022

For the Student:

REDACTED, Esq.

For the Department of Education:

REDACTED, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON November 1, 2022

For the Student:

REDACTED, Esq.

REDACTED, Parent

For the Department of Education:

REDACTED, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON November 9, 2022

For the Student:

REDACTED, Esq.

REDACTED, Parent

For the Department of Education:

REDACTED, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON November 15, 2022

For the Student:

REDACTED, Esq.

REDACTED, Parent

REDACTED, Director, Upper Division of REDACTED School

For the Department of Education:

REDACTED, Esq.

INTRODUCTION AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parent’s Due Process Complaint (“DPC") filed on or about July 7, 2022. Ex. A.^[1] On July 22, 2022, I was appointed by the New York City Department of Education to hear this matter after the appointment of another hearing officer was rescinded. Parent seeks reimbursement for tuition for REDACTED’s placement at The REDACTED School (“REDACTED”) for the 2021-2022 school year.

I conducted a prehearing conference on August 10, 2022. Parent’s counsel appeared. The Department did not appear. I continued the case to September 16, 2022, and again Parent’s counsel appeared and the Department did not appear. On October 17, 2022, Parent’s counsel appeared; counsel appeared for the Department and presented an opening statement. Department exhibits 1 through 9 and Parent’s exhibits A through F were admitted in evidence. ^[2] The hearing was continued to November 1 for the Department to present its case and November 9 and November 15 for REDACTED’ parents to present their case.

On November 1, 2022, the Department requested an adjournment because its witnesses were not available to testify. Tr. 46. Parent consented to an adjournment, and the Department’s case was scheduled to be presented on the previously scheduled November 9 date. Parents’ witnesses were rescheduled for November 15. Tr. 49-51.

On November 9, the Department elected not to call witnesses and rested its case. Tr. 58.

On November 15, Parent appeared with counsel. On behalf of the Parent, Parent’s counsel offered additional documents in evidence. I admitted in evidence Parent’s Exhibits G through I. REDACTED’s program director and REDACTED’s mother testified.

The parties requested extensions of the compliance date, and written Orders of Extension were issued on August 10, September 21 and November 15, 2022. The reasons for granting the extensions are set forth in the Orders.

The record was closed on December 5, 2022.

JURISDICTION

The due process hearing was held, and a decision in this matter is now 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.

Parents consented to the hearing being conducted via videoconference and to the electronic transmission of this Findings of Fact and Decision.

ISSUES

Parents request reimbursement for tuition they paid to REDACTED for REDACTED’s enrollment at REDACTED for the 2021-2022 school year. At the hearing, the Department did not defend its IEP or proposed placement. The issues to be resolved are:

• • Was REDACTED an appropriate placement for REDACTED for the 2021-2022 school year?
• • Does the balance of the equities favor REDACTED’s mother?

FINDINGS OF FACT

• • REDACTED is a now REDACTED year-old boy who is eligible for special education and services under the IDEA and whose disability, for the purposes of the IDEA, is classified as speech or language impairment. Exs. 1 at 1, A at 1.
• • REDACTED has been diagnosed with REDACTED – REDACTED, REDACTED, REDACTED, REDACTED, and REDACTED; he experiences challenges in academics, receptive language, language processing, executive functioning, recall of information, attention and distractibility, Tr. 79-80, 120-121; Exs. 1 at 2-6, 7 passim.
• • When REDACTED was in preschool, his teachers “flagged” him as experiencing challenges in school and needing a full-time SEIT in order to remain in school. Tr. 121; see also Ex. 7 at 1.
• • REDACTED was evaluated by the Department’s preschool CPSE and provided with SEIT services for 12 hours per week; his parents provided, at their own expense; SEIT services for the remainder of the school day. Tr. 121-122.
• • REDACTED’ parents enrolled REDACTED at REDACTED for REDACTED. Tr. 122.
• • REDACTED is a school for children with language-based learning disabilities. Tr. 77; Ex.
• • On April 16, 2022, REDACTED’ mother and father attended an IEP meeting for REDACTED. Tr. 123. They participated in the meeting and discussed with Department personnel the challenges that REDACTED experienced and the benefits of a very small class size for REDACTED. Tr. 124-125; Exs. 1, 2.
• • At the meeting, REDACTED’ parents disagreed with the Department’s recommendation of a 12:1 class in a community school. Tr. 125-126; Exs. 1 at 22, 2, 4.
• • REDACTED’ mother contacted the Department’s recommended placement school, The REDACTED School; the School’s assistant principal informed REDACTED’ mother that the School did not have a 12:1 class, it had only a 12:1:1 class available. Tr. 126-127, 136-137; Ex. 5.
• • REDACTED’ mother informed the Department in writing that REDACTED did not have a 12:1 class. Tr. 128; Ex. B.
• • REDACTED’ parents provided a “ten-day” notice to the Department on August 23, 2021. Ex. B.
• • During the 2021-2022 school year, REDACTED’s schedule at REDACTED included Advisory, math, reading, science, study skills, writing, physical education, service learning/Transition, history, photography, Town Hall, literature circles, Student Advocacy, and, at the end of each day, planner check and check out. Ex. C.
• • REDACTED provided REDACTED with small classes: Advisory, nine students; reading and writing, five students; math, six students; science and history, eight students. Tr. 83.
• • The speech language therapist pushed in to REDACTED’ reading and history classes. Tr. 83.
• • Students are grouped into classes according to their needs and similarity of learning goals. Tr. 83-84.
• • REDACTED needed small classes due to his attentional challenges, and REDACTED’ learning was impacted by his attentional challenges. REDACTED teachers remained close to REDACTED in the classroom in order to (a) “consistently cue him” and “make sure” that he was attending to instruction and (b) work with him in order to break down text and support him “right away and not fall behind where the rest of the class was.” Tr. 81, 84-85.
• • In REDACTED’s small classes, REDACTED needed, and received from his teachers, modification and differentiation of instruction as well as one-to-one teacher support for checks for understanding. Tr. 85.
• • REDACTED’ weaknesses in receptive language and information recall significantly impacted his reading comprehension. Tr. 80. In addition, REDACTED struggled with reading accuracy and fluency. He had difficulty with multisyllable words and with sight words; all of which impacted his comprehension of written material. Tr. 80-81.
• • REDACTED also struggled with writing; his sentences were simplistic, and his vocabulary and organization were poor. Tr. 81.
• • The push in speech language therapist was in important intervention for REDACTED. The speech language therapist “help[ed] break down and support language, especially around directions or longer texts.” Tr. 81-82.
• • In reading, instruction focused on reading accuracy, fluency and comprehension by utilizing Orton-Gillingham to target decoding of multisyllable words as well as direct instruction on prefixes and suffixes, word identification and reading accuracy. Tr. 86-87; Exs. H at 2,.
• • Reading comprehension was addressed through direct instruction on how to identify meaningful details and information and using that information to make inferences, generate the main idea and theme, and to understand the text. In addition, the speech language therapist in the classroom would support comprehension work by utilizing Lindamood-Bell’s visualizing and verbalizing program. Tr. 87-88, 91-92.
• • REDACTED made progress in reading: he learned to read more multisyllable words accurately, make more accurate inferences about a text, identify details in a text, and improve his verbal and written responses about a text. In addition, he improved his skills in following directions independently when completing reading assignments. Tr. 93- 94; Ex. H at 3, I at 3-4.
• • In math, REDACTED was working on pre-algebra curriculum; REDACTED’ teacher used a “spiraling review” of operations, consistent work with the class on calculations, multisensory instruction, slowing the pace of instruction, and breaking down and simplifying mathematical language. Tr. 94-94, 96-97; Ex. H at 8-9.
• • REDACTED needed, and his teacher provided during math instruction, repeated instructions, one-to-one support to review math problems, modified worksheets, and support for REDACTED’ use of a calculator to check his answers. Tr. 97-98.
• • REDACTED made progress in math: his calculation of multistep problems improved, he attempted to complete problems independently with greater success and less teacher support, and learned to apply previously learned skills to new types of problems. Tr. 98; Ex. H at 9, I at 7-8.
• • In writing, REDACTED worked on spelling with an Orton-Gillingham spelling program, punctuation and capitalization, writing more complex sentences, and developing topics and expressing his main idea. Tr. 99-100; Exs. H at 6-7, I at 5-6.
• • REDACTED made progress in writing: he learned to write more complex sentences, paragraphs and essays (with teacher support, but less support as the school year progressed). Tr. 101; Exs. H at 5-6,.
• • The director of REDACTED’s program at REDACTED, who is a New York State certified special education teacher and school building leader, explained that REDACTED, due to his specific language and learning challenges, needed the intensive and individualized support provided in the small classes at REDACTED. Tr. 83-86, 103.
• • REDACTED offers the related services of speech and occupational therapies, provided by appropriately licensed personnel. Tr. 76.
• • REDACTED received speech therapy on both a push in and pull out basis. Speech therapy targeted REDACTED’ applying the speech and language skills that he previously learned in his classes. Tr. 109-110; Exs. H at 17, I at 16.
• • REDACTED made progress in his social/emotional growth in terms of social skills, identifying when he needed to ask for help, and self-advocacy. Tr. 105; Ex. I at 1.
• • REDACTED’ mother observed that REDACTED made progress in reading, math, science and social studies and that he benefited from the individualized and scaffolded instruction. Tr. 135-135.
• • REDACTED’s mother entered into an enrollment contract with REDACTED for the 2021-2022 school year. The contract obligates REDACTED’s mother to pay the entirety of the tuition amount of $72,725.00. Tr. 129-130; Ex. G.
• • REDACTED’s parents have paid the entire amount of the 2021-2022 school year tuition. Tr. 130; Exs. E, F.

CONCLUSIONS OF LAW

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 is “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.

In this case, the Department did not present testimony with respect to its provision of FAPE to REDACTED for the 2021-2022 school year, specifically to explain how the programming, services, supports and accommodations set forth on the IEP were “reasonably calculated” to address REDACTED’s special educational needs. Since the Department did not offer such evidence 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.

Was REDACTED an appropriate placement for REDACTED for the 2021-2022 school year?

REDACTED’ parents bear 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 Sch. Dist., 459 F. 3d 356, 364 (2d Cir. 2006), cert. denied, 128 S.Ct. 169 (2007). To meet this burden, REDACTED’s mother must show that the educational services provided at REDACTED addressed REDACTED's identified special education needs. See C.F. v. New York City Dep’t of Educ., 746 F.3d 68, 82 (2d Cir. 2014); 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 Sch. Dist., 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 her specific and identified special education needs were addressed. In particular, REDACTED addressed REDACTED’s need for small classes in which he received the small classes, direct and scaffolded instruction, teacher supports and related services that he required in order to address his language-based and attentional challenges so he could learn. The record is clear as to the extent of the individualized special education and other supports that REDACTED personnel provided to REDACTED. See paragraphs 12 through 22, 24 through 25, 27, and 29 through 31, above.

REDACTED made progress at REDACTED during the 2021-2022 school year. See paragraphs 23, 26, 28, 32 and 33, above. At REDACTED, REDACTED has 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).

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 2021-2022 school year. As a result, REDACTED’s parent prevails with respect to the second Burlington/Carter criterion.

Does the balance of the equities favor REDACTED’ parents?

With respect to the third Burlington criterion, whether equitable considerations support REDACTED’s parent’s claims, the evidence establishes that REDACTED’ parents cooperated with the CSE by attending CSE meetings, communicating with Department personnel about their concerns, 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).

Equitable considerations thus favor the award of relief to REDACTED’s mother. As a result, REDACTED’s mother prevails with respect to the third Burlington/Carter criterion.

ORDER

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

The Department of Education shall reimburse REDACTED’ parents for REDACTED’ placement at the REDACTED School for the 2021-2022 school year. The amount of reimbursement for the 2021-2022 school year shall not exceed $72,725.00.

SO ORDERED.

DATED: December 19, 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 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.

DOCUMENTATION ENTERED INTO THE RECORD

DEPARTMENT EXHIBITS

EXHIBIT NO.

DATE

DESCRIPTION

NO. OF PAGES

1

4/16/21

IEP 30 2 4/16/21

IEP Attendance 1 3 4/16/21

IEP Minutes

3

4

4/30/21

PWN

4

5

4/30/21

SLL

3

6

3/5/21

Notice of IEP Meeting

3

7

Various Dates

Neuropsychological Evaluation

18

8

12/21/20

REDACTED Mid-Year report

13

9

4/29/18

Social History Update

3

PARENT EXHIBITS

Letter

Date

Name of Document

# of Pages

A 7/7/2022 Due Process Complaint 4

B 8/23/2021 10 Day Notice with Confirmation Receipt 3

C 2021-2022 Class Schedule 1

D 6/30/2022 Attendance Record 1

E 1/13/2022 Affidavit of Payment 1

F Various Dates Proof of Payments 6

G 2/22/2021 2021-2022 Re-Enrollment Contract 7

H 12/19/2021 Mid Year Report 2021-2022 17

I

6/21/2022

End of Year Report 2021-2022

16

Footnotes

[1] Exhibits shall be referred to as follows: Parent’s exhibits are identified with letters; Department exhibits are identified with numbers; and Impartial Hearing Officer’s Exhibits are labelled as “IHO.”.

[2] A more detailed list of the admitted exhibits is attached to this Decision as “Documentation Entered Into the Record.”