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Special Education Law
DECISIONParent PrevailedIHO Case No. 228926

New York City Department of Education, Impartial Hearing Decision

December 17, 2022·Jean Marie Brescia·New York City Department of Education

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

CASE NUMBER: 576220 - NYC: 228926

FINDINGS OF FACT AND DECISION

Case Number: 228926

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 8, 2022

September 14, 2022

October 19, 2022

November 14, 2022

Actual Record Closed Date: December 4, 2022

Date of Decision: December 17, 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 8, 2022

For the Student:

REDACTED, Paralegal

For the Department of Education:

REDACTED, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON September 14, 2022

For the Student:

REDACTED, Esq.

For the Department of Education:

REDACTED, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON October 19, 2022

For the Student:

REDACTED, Esq.

REDACTED, Esq.

REDACTED, Parent

For the Department of Education:

REDACTED, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON November 14, 2022

For the Student:

REDACTED, Esq.

REDACTED, Esq.

REDACTED, Parent

REDACTED, Program Director, 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. Parent alleges that the Department failed to offer a free appropriate public education to REDACTED and seeks reimbursement for tuition and costs for REDACTED at the REDACTED School (“REDACTED”) for the 12-month 2022-2023 school year. Ex. A at 1, 8. REDACTED’s parents also seek funding for specialized transportation. Ex. A at 8.

I conducted a prehearing conference on August 8, 2022. Counsel for the Department appeared; a representative appeared on behalf of REDACTED’s parent. Tr. 2. The Parent’s representative clarified the relief requested. Tr. 2-3. Pendency was discussed. Tr. 4-5. The hearing was scheduled for September 14.

On September 14, counsel for both the Department and REDACTED’s parent presented opening statements. Parent’s exhibits A through S were admitted in evidence. The hearing was scheduled to continue on October 19.

On October 19, the Department rested its case without presenting the testimony of witnesses or offering documents in evidence. Tr. 30. The hearing was scheduled to continue on November 14 to accommodate the schedules of the witnesses.

The hearing was completed on November 14. Parent rested her direct case upon the affidavits of REDACTED’s parent and REDACTED’s program director. Tr. 49-50. Counsel for the Department cross-examined the program director. The hearing concluded.

The parties requested extensions of the compliance date, and a written Orders of Extension were issued on August 8, October 19 and November 14, 2022. The reasons for granting the extension are set forth in the Orders.

The record was closed on December 4, 2022, upon the Hearing Officer’s receipt and review of Parent’s Closing Brief.

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.

ISSUES

Parent requests funding for tuition and related services costs at REDACTED, reimbursement for monies paid and direct payment for tuition due and owing. At the hearing, the Department did not defend its IEP or proposed placement. The issues to be resolved are:

  • • Is REDACTED an appropriate unilateral parental placement for REDACTED for the 2022-2023 12-month school year?
  • • Does the balance of the equities favor REDACTED’s parent?

FINDINGS OF FACT

  • • REDACTED is a 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 at speech or language impairment. Ex. G.
  • • REDACTED has been diagnosed with REDACTED, REDACTED, and REDACTED. Ex. E at 9. He demonstrates difficulties with academics, attention and anxiety, and manifests challenging behaviors: he can become dysregulated and act impulsively, resulting in hitting classmates and tossing class materials. Exs. E at 9, G passim, R at ⁋⁋ 2-5; Tr. 54-55.
  • • REDACTED can be rigid, engage in self-directed behaviors, is easily distracted, and can become overwhelmed, all of which interfere with his learning. Tr. 55; Ex. S at ⁋⁋ 4-5.
  • • REDACTED received Early Intervention services to address language delays; he attended REDACTED for preschool. Tr. 67; Exs. E at 2, R at ⁋ 1.
  • • REDACTED currently attends a REDACTED program in a 10:1:2 classroom at REDACTED. Ex. R at ⁋⁋ 1, 20.
  • • REDACTED is a private special education school enrolling children ages 2.8 to 11 years and providing a 12-month program to its students. Ex. R at ⁋⁋ 4, 9.
  • • REDACTED’s mother consented to the Department’s “turning REDACTED” evaluation of REDACTED. Ex. F at 3-4.
  • • REDACTED’s mother attended a CSE meeting for REDACTED on March 2, 2022. Exs. F at 2, G at 28.
  • • She participated in the meeting and contributed to the discussions, and she expressed her concerns about the CSE’s 12:1:1 class recommendation and the size of the school (because REDACTED becomes overwhelmed, anxious and withdrawn). Ex. G at 6, 8-10, 28; see also Ex. S at ⁋⁋ 8-11.
  • • On May 16, when REDACTED’s mother did not receive the IEP developed at the March 2 meeting, she contacted the CSE and requested a copy of the IEP. Ex. F at 1. Department personnel then forwarded her a copy of the IEP. Ex. F at 1.
  • • The Department recommended that REDACTED attend REDACTED – The REDACTED. Ex. H. As indicated on the school placement form, REDACTED’s mother tried to reach school personnel to visit and learn about the placement. She was not able to arrange a tour. Exs. I, J, K, S at ⁋ 13.
  • • REDACTED’s 10:1:2 classes are for children with language-based and non-verbal learning disabilities “who struggle with deficits in attention, regulation, and language, which impacts their learning” and who need a high level of support and an individualized and developmentally-based curriculum but who do not need 1:1 support. Exs. N, R at ⁋ 13.
  • • REDACTED’s class at REDACTED includes ten students with three teachers, one of whom is a New York State certified general and special education teacher. Tr. 52-53; Ex. R at ⁋⁋ 20, 23.
  • • The 10:1:2 class is the appropriate size for REDACTED because continues to require a “highly structured special education class” due to his challenges with attention, pragmatic language skills, perspective taking, emotional regulation and sensory issues, and executive functioning skills. Ex. R at ⁋ 24.
  • • REDACTED and the other students in the class share similar challenges and needs. Ex. R at ⁋ 25.
  • • REDACTED’s schedule includes tabletop activities, morning meeting, literacy, “Roof,” math, social studies, science, lunch, music, art, choice time, journal time, read alouds, goodbye meeting, and related services of counseling, occupational therapy, and speech therapy. Ex. P.
  • • Morning meeting and goodbye meeting are utilized to prepare the students for the school day and to reinforce literacy skills and social skills. REDACTED needs these times to understand the “expectations for the day,” and to practice turn-taking in listening to his classmates and problem-solve around social skills. Ex. R at ⁋ 31.
  • • “Roof” refers to the “roof top play terrace” for students to engage in gross motor activities and social games facilitated by teachers. Ex. R. at ⁋ 32.
  • • Choice time requires students to make choices about activities; and teachers “scaffold the student’s language by asking questions, introducing vocabulary, and expanding their ideas” with the goals of developing social problem solving and language and ideation skills. Ex. R at ⁋ 35.
  • • Read alouds develop students’ listening comprehension skills; REDACTED benefits from read alouds because he must listen attentively and answer questions while remaining on topic. Ex. 36 at ⁋ 36.
  • • REDACTED staff utilize preemptive and proactive strategies to try to prevent REDACTED from becoming overwhelmed and dysregulated, including visual schedules, clear expectations about the day’s classroom activities, positive reinforcement, sensory strategies and breaks. Tr. 55, 59-60.
  • • The above strategies are effective for REDACTED, resulting in fewer instances of him hitting classmates. Tr. 55.
  • • REDACTED’s teachers scaffold instruction for him because he needs much support to learn new material; as he learns the material, his teachers reduce support in stages. Tr. 61-63.
  • • To teach REDACTED social skills, they start the scaffolding process with modeling. Tr. 63.
  • • REDACTED’s teachers have developed, and implement, individualized learning goals for REDACTED, including developing his literacy skills (letter-sound correspondence to encode and decode CVC words), developing math skills (addition and subtraction using manipulatives), peer interactions, following group directions, developing coping skills for when he is anxious, writing upper case letters, and developing language skills (recalling personal events and sharing information in a sequenced narrative). Ex. R at ⁋⁋ 39-44.
  • • REDACTED has made the following progress at REDACTED this school year:
  • • Learned basic addition and subtraction using manipulatives;
  • • Improved social interactions with peers, both with respect to initiating interactions, gaining attention of peers, turn-taking and engaging in play activities with peers;
  • • Improved communication skills, for example, retelling personal experiences;
  • • Writing his name and other letters and identifying the initial sound of a word;
  • • Improvement in following classroom routines and regulation and decreased negative behaviors; Tr. 57-61; Ex. R. at ⁋ 38.
  • • REDACTED’s mother observed that, at REDACTED, REDACTED has improved his communication skills and social skills. Tr. 68.
  • • REDACTED’s mother entered into an enrollment contract with REDACTED for REDACTED’s attendance at REDACTED for the 2022-2023 12-month school year commencing on July 7, 2022. The contracted tuition amount is $92,300.00, and REDACTED’s mother is obligated to pay this amount. Ex. L; see also Ex. S at ⁋ 20.
  • • REDACTED’s mother has paid $9,300.00 of the tuition amount. Ex. M.
  • • REDACTED’s mother explained the family’s financial circumstances and inability to pay the REDACTED full tuition amount at the current time and then seek reimbursement. Ex. S. at ⁋ 22.
  • • REDACTED’s mother, through counsel, submitted a ten-day notice letter to the Department on June 22, 2022, notifying the Department that she would be seeking funding for REDACTED’s placement at REDACTED and transportation to and from the school. Ex. B.

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 or the educational and related services selected by the parents are 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. REDACTED 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 or services reimbursement for a unilateral placement, or services selected by the parent, has the burden of proof regarding the appropriateness of such placement, programming or services. 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 or documentary evidence with respect to its provision of FAPE to REDACTED for the 2022-2023 school year or to rebut the testimony of REDACTED’s mother or her witnesses. Since the Department did not offer any testimony or documentary evidence to explain how its program for David 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 an appropriate placement for REDACTED?

REDACTED’s parent bears the burden of proof concerning the appropriateness of REDACTED’s program for REDACTED. See, e.g., Frank G. v. Bd. of Educ. of the Hyde Park Cent. Sch. Dist., 459 F. 3d 356, 364 (2d Cir. 2006), cert. denied, 128 S.Ct. 169 (2007). To meet this burden, REDACTED’s parent must show that the educational services provided by 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 provides REDACTED with an educational environment in which his identified special education needs are addressed. First and foremost, REDACTED addresses REDACTED’s need for a small, highly structured program with high levels of teacher support, interventions to address his behaviors and learning needs, scaffolded instruction, and related services, as described in paragraphs 13 through 25, above. See, e.g., A.M. v. New York City Dep’t of Educ., 845 F.3d 523, 545 (2d Cir. 2017); R.E., 694 F.2d at 194; M.H. v. New York City Dep’t of Educ., 712 F. Supp. 2d 125 (S.D.N.Y. 2010), aff’d 685 F.3d at 252; see also 34 C.F.R. § 300.39(b)(3) (“[s]pecially designed instruction means adapting, as appropriate to the needs of [the child], the content, methodology, or delivery on instruction”).

REDACTED has made progress at REDACTED during the 2022-2023 school year as explained in paragraphs 26 and 27, above. At REDACTED, REDACTED is making progress across the range of his challenges, clearly demonstrating that REDACTED is 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 is appropriate for REDACTED for the 2022-2023 12-month 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’s parents?

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 consenting to evaluations, attending the CSE’s “turning REDACTED” IEP meeting for REDACTED, communicating with Department personnel, expressing her concerns about the IEP 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). 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.

Furthermore, a prospective award is appropriate for that portion of the tuition that REDACTED’s parent has not yet paid. Although REDACTED’s mother has paid only a portion of the REDACTED tuition, the debt for the full amount of the tuition is very real. A hearing officer may, where the other requirements of Burlington and Carter permit, order prospective payment (rather than reimbursement) 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 have the financial wherewithal to “front” the entire amount of the private school tuition and subsequently seek repayment from the school district.

As to Parent’s request for an order that the Department continue to provide specialized transportation for REDACTED as per the Department’s IEP, there is no evidence or argument that the Department is not providing such transportation. See IHO Ex. I at 9-10. Since there is no dispute between the parties as to transportation, I should not enter an order with respect to transportation.

ORDER

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

The Department of Education shall fund REDACTED’s placement at the REDACTED School for the 2022-2023 12-month school year. The amount of funding for the 2022-2023 12-month school year shall not exceed $92,300.00. The funding shall be reimbursement to REDACTED’s parent for the amounts that she has paid to REDACTED for REDACTED’s tuition for the 2022-2023 school year, and direct payment to REDACTED for any amounts that REDACTED’s parent has not yet paid for tuition the 2022-2023 12-month school year.

SO ORDERED.

DATED: December 17, 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

PARENT’S EXHIBITS

Exh.

Date

Description

# of Pages

A

07/05/2022

Due Process Complaint

12

B

06/22/2022

Ten Day Notice

4

C

09/30/2021

2020-2021 Findings of Fact and Decision (Case No. 203760)

12

D

08/10/2022

2022-2023 Pendency Form (Case No. 228926)

2

E

July 2020

Neuropsychological Evaluation by Dr. REDACTED

13

F

05/16/2022

Email to CSE re. Request for Copy of March 2022 IEP

4

G

03/02/2022

IEP

28

H 05/29/2022 Prior Written Notice and School Location Letter 3

I Various Parent Emails to The REDACTED 3

J

06/08/2022

Parent Emails with CSE re. Outreach to REDACTED

3

K

07/15/2022

Letter to CSE re. Public Placement Concerns

3

L 2022-2023 REDACTED Enrollment Contract 2

M 2022-2023 REDACTED Tuition Affidavit 1

N 2022-2023 REDACTED Program Description 1

O 2022-2023 REDACTED Remote Learning Plan 1

P 2022-2023 REDACTED Class Schedule (Summer) 1

Q 2022-2023 REDACTED Attendance (Summer) 2

R 08/17/2022 Affidavit of REDACTED 11

S 09/06/2022 Affidavit of REDACTED 4 IHO EXHIBITS I 12/1/2022 Closing Brief on Behalf of Petitioners 11 pages

Footnotes

[1] Exhibits shall be referred to as follows: Parents’ Exhibits are designated by a letter; Department’s Exhibits are designated by a number; and Impartial Hearing Officer’s Exhibits are designated as “IHO.”