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Special Education Law
DECISIONParent PrevailedIHO Case No. 228936

New York City Department of Education, Impartial Hearing Decision

December 30, 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: 228936

FINDINGS OF FACT AND DECISION

Case Number: 228936

Student’s Name: REDACTED 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 16, 2022

October 17, 2022

October 27, 2022

December 1, 2022

Actual Record Closed Date: December 17, 2022

Date of Decision: December 30, 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 REDACTED, Esq.

For the Department of Education:

REDACTED REDACTED, Esq.

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

For the Student:

REDACTED REDACTED, Esq.

For the Department of Education:

None

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

For the Student:

REDACTED REDACTED, Esq.

For the Department of Education:

REDACTED REDACTED, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON October 27, 2022

For the Student:

REDACTED REDACTED, Esq.

REDACTED REDACTED, Parent

REDACTED REDACTED, Parent

REDACTED REDACTED, Director, REDACTED School at REDACTED

For the Department of Education:

REDACTED REDACTED, Esq.

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

For the Student:

REDACTED REDACTED, Esq.

REDACTED REDACTED, Parent

REDACTED REDACTED, Parent

For the Department of Education:

REDACTED 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 for REDACTED at REDACTED at the REDACTED (“REDACTED”) and for transportation for the 2021-2022 school year. Ex. A at 1, 3.

I conducted a prehearing conference on August 8, 2022. Counsel for both parties appeared. Tr. 2-3. Counsel clarified the relief requested and discussed consolidation of this matter with REDACTED’s hearing request for the 2020-2021 school year. I entered a written order denying consolidation for the reasons set forth in the order. The hearing was scheduled for September 16, 2022.

On September 16, counsel for REDACTED’s parents appeared; there was no appearance on behalf of the Department. The hearing was rescheduled to continue on October 17. On October 17, counsel for both parties appeared. The Department rested its case without presenting documentary evidence or testimony. Tr. 21, 24. Both parties presented opening statements. Parents’ exhibits A through J were offered in evidence and admitted. The hearing was scheduled to continue on October 27. The director of REDACTED testified on October 27.

On December 1, Parents’ exhibits K and L were offered in evidence and admitted. REDACTED’s mother testified, and counsel presented closing statements.

The parties requested an extensions of the compliance date, and written Orders of Extension was issued on August 8, September 16, October 27 and December 1, 2022. The reasons for granting the extensions are set forth in the Orders.

The record was closed on December 17, 2022, upon the Hearing Officer’s receipt and review of the transcript of the final day of the hearing.

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.

REDACTED’s parents consented to the hearing being conducted by videoconference and to transmission of this decision by email.

ISSUES

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

  1. Was REDACTED an appropriate unilateral parental placement for REDACTED for the 2021-2022 school year?
  2. Does the balance of the equities favor REDACTED’s parents?

FINDINGS OF FACT

  1. REDACTED is a REDACTED year-old boy who is eligible to receive special education and services. Exs. A, L at ⁋ 4.
  2. REDACTED has been diagnosed with REDACTED and a REDACTED. Ex. L at ⁋ 5.
  3. REDACTED had difficulties focusing and maintaining attention and can become REDACTED and impulsive, which lead, in REDACTED, to challenges with language, which impacts his learning. Tr. 64. He struggles with social and emotional skills, communication and academics, especially reading and writing, and needs significant adult support with tasks that require sustained attention. Tr. 64; Ex. L at ⁋ 2.
  4. REDACTED has difficulties staying in his seat and attending, if he is distracted by something he impulsively leaves his seat and disrupts the class. Tr. 66.
  5. REDACTED is a “visual learner” who needs a multisensory teaching approach in a small group with one-to-one support and both shortened instructional and work periods with breaks and extra time to complete assignments. Tr. 65.
  6. REDACTED received Early Intervention services (SEIT and speech and occupational therapies) due to impulsive and unsafe behaviors. Ex. L at ⁋ 3.
  7. REDACTED received preschool special education services and was placed by the CPSE in a center-based special education preschool. Ex. L at ⁋ 3.
  8. REDACTED attended a charter school for kindergarten and first grade in an ICT class with SETSS, a paraprofessional and related services. Ex. L at ⁋ 4.
  9. Nicholas attended P.S. 24 for second, third and fourth grades in an ICT class and then general education with SETSS and counseling. He struggled at P.S. 24 and was functioning below grade level. Ex. L at ⁋ 4.
  10. REDACTED entered REDACTED for the 2020-2021 school year and remained at the school for the 2021-2022 school year. Tr. 60; Ex. L at ⁋⁋ 6-7.
  11. REDACTED is a “school within a school:” it is special education school for students with a range of disabilities; students have individualized schedules and are able to participate in general education classes in the general education school, as appropriate, and also participate in lunch, recess and specials, as appropriate, with general education students. Tr. 56-57; Ex. J.
  12. REDACTED includes 25 special education students in grades two through eight. Tr. 57.
  13. The program includes students with autism, ADHD, language processing, dyslexia and/or anxiety. Tr. 57-58.
  14. REDACTED’s mother and father attended (virtually) an IEP meeting for REDACTED on April 26, 2021. Ex. L at ⁋ 8. At the meeting, REDACTED’s parents expressed their concerns about REDACTED’s lack of progress in the ICT classes, the size of the ICT classes, and REDACTED’s need for individualized support. The CSE recommended that REDACTED be placed in an ICT class. Ex. L at ⁋⁋ 9-10.
  15. When REDACTED’s parents received notice of a public school placement for REDACTED, REDACTED’s mother telephoned and emailed school personnel to learn about the placement. Ex. L at ⁋⁋ 18-21.
  16. REDACTED personnel develop a Comprehensive Student Plan for each students, including REDACTED. Ex. J; Tr. 74.
  17. REDACTED’s schedule, for the 2021-2022 school year, included: Advisory, Judaic Studies, reading comprehension, recess, lunch, math, writing, physical education, organizational skills, social studies, science, STEAM, Hebrew language, and the related services of language therapy and social life skills. Ex. H.
  18. REDACTED was in special education classes for reading, writing, a Judaic studies class, and social studies. Tr. 71.
  19. REDACTED was in mainstream classes for another Judaic studies class, math, science, lunch, recess, physical education and STEAM (science, technology, engineering, art, music). Tr. 67, 93, 95.
  20. REDACTED was mainstreamed for math and science because these were areas of strength for him; lunch and recess were times for REDACTED to practice his social skills. Tr. 67-68.
  21. Approximately 15 percent of REDACTED’s schedule consisted of religious instruction and/or celebration. Tr. 85.
  22. There were five students in REDACTED’s reading class, three students in his writing class (with one-to-one support as needed), and two students in social studies. Tr. 73.
  23. REDACTED needed small classes due to his attentional difficulties and his particular difficulties in focusing on reading, comprehension skills (including following oral directions), and writing. Tr. 72-73.
  24. In reading, REDACTED worked on reading comprehension, responding to texts both verbally and in writing, and building his vocabulary. Tr. 75. He needed, and school staff provided, one-to-one support, scaffolding, directions repeated, and support of the speech therapist. Tr. 76; Ex. I.
  25. In writing, REDACTED worked on expanding sentences, writing multi-paragraph essays, and editing his work. Tr. 78. He needed, and school personnel provided, one-to-one support, assistance with outlining, scaffolding and explicit instruction. Tr. 78; Ex. I.
  26. In Advisory, in a class with nine students and three teachers, REDACTED’s class worked on social-emotional learning as a group, including greetings, discussing current events, listening and conversation skills, and eye contact. Tr. 81, 91, 94. At the end of the school day, the class worked on executive functioning skills. Tr. 82, 93-94.
  27. There were 15 students in REDACTED’s math and science classes. Tr. 72.
  28. Teachers supported REDACTED when he struggled with the writing and listening components of the science class. Tr. 69-70. They provided additional teaching and review of material, homework and test prep. Tr. 70-71.
  29. A remote learning plan was in place for REDACTED in the event that he was at home due to quarantine. Tr. 85.
  30. REDACTED provided REDACTED with the related services of language therapy (individually and in a group) and social life skills with a psychologist (individually). Tr. 82; Ex. I at 2.
  31. REDACTED employed related services providers who are appropriately licensed in their respective fields. Tr. 58.
  32. REDACTED made progress during the 2021-2022 school year:
    1. increased his Fountas and Pinnell reading level from T (beginning fifth grade) to U(end of fifth grade) (tr. 86, 87-88);
    2. discussed with more complexity the stories he read (tr. 76-77);
    3. preparing more complex written reading responses (tr. 77);
    4. his sentences and essays improved, and he learned to develop topic sentences for his multi-paragraph essays (tr. 78; Ex. I at 13; Ex. L at ⁋⁋ 28-29); and
    5. REDACTED needed teacher support to socialize during lunch and recess; he made progress with social skills (tr. 68-69; Ex. L at ⁋ 29).
  33. REDACTED’s parents entered into an enrollment contract with REDACTED for the 2021-2022 school year. The total amount of the tuition was $106,000.00. Ex. D. The contract obligates REDACTED’s parents to pay this amount. Ex. D.
  34. As of the time of the hearing, REDACTED’s parents were on a payment plan with the school and had paid $10,500.04 of the tuition. Exs. E, F.
  35. The family’s financial circumstances were and remain such that they are unable to pay the entire tuition amount at this time. Ex. K; Tr. 115-116.
  36. REDACTED’s parents submitted a ten-day notice letter to the Department on August 18, 2021. In this letter, they reiterated their concerns about the Department’s ICT program recommendation for REDACTED. Ex. B.
  37. REDACTED’s parents also wrote to the CSE to express their concerns about the ICT classes at the Department’s recommended school for REDACTED. Ex. C.

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.

Did the Department offer REDACTED a FAPE?

In this case, the Department did not present testimony or documentary evidence with respect to its provision of FAPE to REDACTED for the 2021-2022 school year or to rebut the testimony of REDACTED’s mother or her witness. As a result, 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 parents bear 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 parents 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’s program provided REDACTED with an educational program in which his constellation of identified special education needs was addressed. In particular, the record is clear that REDACTED needed the small classes, specialized instruction, scaffolding, teacher support, small classes, and related services. REDACTED provided REDACTED with such instruction, supports, and services. See paragraphs 16 through 31, above. Furthermore, REDACTED made progress, in light of his unique set of challenges and circumstances, at REDACTED during the 2021-2022 school year. See paragraph 32 above. The evidence demonstrates that REDACTED provided him with an appropriate special education program. 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); see also, e.g., Application of a Student with a Disability, Appeal No. 22-002 at pp. 16-19 (prong II burden met when testimony of school witness describes how school’s program addresses student’s individual needs); Application of a Student with a Disability, Appeal No. 21-063 at pp. 14-16 (same); Application of a Student with a Disability, Appeal No. 21-056 at pp. 18-22 (same).

Considering the “totality of the circumstances” as required by the Second Circuit in Frank G., the evidence supports a finding that REDACTED’s educational and related services programming is appropriate for REDACTED. As a result, REDACTED’s parents prevail 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 REDACTED’s parents’ claims, the evidence establishes that REDACTED’s parents cooperated with the Department by enrolling REDACTED in the Department’s schools in prior school years, attending the IEP meeting, participating in that meeting and sharing their concerns with Department personnel, inquiring about the proposed placement, writing to the Department 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).

REDACTED’s parents seek direct payment to REDACTED for a much of the tuition for the 2021-2022 school year. As the federal courts have made clear, such direct payment is appropriate when (a) equitable considerations favor an award of tuition and/or services costs, and (b) the student’s parents, though legally obligated to make payments for tuition and/or services costs, have not made such payments because they do not have the financial ability to do so. Connors v. Mills, 34 F. Supp. 2d 795 (N.D.N.Y. 1998); Mr. and Mrs. A. v. New York City Department of Education, 769 F. Supp. 2d 403, 428-429 (S.D.N.Y. 2011). REDACTED’s parents have demonstrated that they have an obligation to pay tuition and their lack of lack of available financial resources to pay the entirety of the tuition up front. As a result, a prospective award is appropriate for that portion of the REDACTED tuition that REDACTED’s parents have not yet paid.

In addition, the fact that REDACTED is an institution where religion is studied and celebrated with the students does not, in itself, render the school an inappropriate special education placement nor bar tuition reimbursement/funding to the parents. See Application of a Child with a Disability, Appeal No. 96-14. REDACTED’s schedule shows that 85 percent of the school week is spent engaged in non-religious subjects and activities, and an impartial hearing officer may grant tuition reimbursement/funding for tuition that could reasonably be construed as not funding religious education. As a result, 85 percent of the REDACTED tuition is subject to payment in this proceeding.

Equitable considerations thus favor the award of tuition funding relief to REDACTED’s parents, and they prevail with respect to the third Burlington/Carter criterion.

There is insufficient evidence for me to rule with respect to transportation for the 2021-2022 school year, and, in addition, such a claim (since it does not appear to be a claim for the costs of previously expended transportation expenses), is moot.

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 REDACTED the 2021-2022 school year. The amount of funding for the 2021-2022 school year shall not exceed $90,100.00. The funding shall be reimbursement to REDACTED’s parents for the amounts that they have paid to REDACTED for REDACTED’s tuition for the 2021-2022 school year, and direct payment to REDACTED for any amounts that REDACTED’s parents have not yet paid for tuition for the 2021-2022 school year.

SO ORDERED.

DATED: December 30, 2021

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

Letter

Date

Name of Document

# of Pages

A

7/7/2021

Due Process Complaint with Receipt

4

B

8/18/2021

Ten-Day Notice Letter with Confirmation Receipt

3

C

10/20/2021

Parent Letter with Confirmation Receipt

3

D

3/1/2021

2021-2021 Tuition Contract

1

E

7/29/2021

Affidavit of Payment

1

F

Various Dates

Proof of Payment

20

G

2021-2021

Attendance Record

1

H

Undated

Class Schedule

1

I

2021-2021

Comprehensive Student Plan (CSP)

15

J

Undated

REDACTED Schools Program Description

1

K

2/28/2020

Form 1040

2

L

11/18/2021

Testimony Affidavit – REDACTED REDACTED

8

Footnotes

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