New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 576755 - NYC: 229397

FINDINGS OF FACT AND DECISION

Case Number: 229397

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

Date of Birth: [REDACTED]

School District: [REDACTED]

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

Request Date/Date Complaint Filed: July 22, 2022

Date(s) of Hearing: October 21, 2022

Actual Record Closed Date: October 21, 2022

Date of Decision: November 4, 2022

Hearing Officer: Lisa S. Rusk, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 21, 2022

For the Student:

[REDACTED], Attorney

[REDACTED], Parent

[REDACTED], Teacher, [REDACTED]

[REDACTED], Administrator, [REDACTED]

[REDACTED], Principal, [REDACTED]

For the Department of Education:

No one

INTRODUCTION AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) by Parents’ Due Process Complaint (“DPC") dated July 20, 2022 and filed on or about July 22, 2022 (Ex. P-A)^[2]. The DPC alleges the District failed to provide a Free Appropriate Public Education (FAPE) to the Student for the 2021-22 school year and seeks reimbursement/direct payment for the Parents’ unilateral placement of the Student at the [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 August 2, 2022. Notice of a prehearing conference on August 22, 2022 was sent to both parties via email on August 2, 2022. The prehearing conference was held on August 22, 2022. The Parents were represented by [REDACTED]. No one appeared on behalf of the District. On August 22, 2022, this IHO emailed to both parties a notice of a status conference scheduled for September 8, 2022. The status conference was held on September 8, 2022. [REDACTED] appeared on behalf of the Parents, and again no one appeared on behalf of the District. An order of extension was issued at the request of the Parents.

On September 8, 2022, this IHO sent notice to both parties via email of a hearing scheduled for October 21, 2022 (see Ex. IHO- I). The Parents’ proposed exhibits were disclosed to the District on October 20, 2022. [REDACTED] appeared on October 21, 2022 on behalf of the Parents. No one from the District appeared on behalf of the District, no request for an adjournment was made on behalf of the District and no notice of appearance was ever filed on behalf of the District. Given the District’s complete failure to appear and/or communicate with the IHO during the scheduling of this matter, the hearing went forward on October 21, 2022 in absentia. It was a closed hearing.

The Parents submitted 14 exhibits into evidence (Exs. P- A-M)^[3], including 3 witness affidavits. The Parent testified, and the three affidavit witnesses were presented via virtual testimony at the request of the IHO to answer supplemental questions. The Parents’ attorney made a closing statement on the record.

The record was closed on October 21, 2022.

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. The DPC also alleged a violation of Section 504 of the Rehabilitation Act of 1973, but no testimony or evidence was offered regarding such a claim, and consequently no finding of a violation is made.

BACKGROUND

The Student is a [REDACTED] year old male who was unilaterally placed at the private school by the Parents for the 2021-22 school year. The Student has been classified as a student with a speech or language impairment by the District’s Committee on Special Education (CSE). The DPC alleges that the CSE developed an inappropriate Individualized Education Program (“IEP”) for the 2021-22 school year, but the IEP has not been placed into evidence.

ISSUES

The Parents allege that the District failed to evaluate the Student in all areas of suspected disability in preparation for the June 2021 CSE meeting, and failed to conduct an updated speech and language, occupational therapy, social history and classroom evaluation. The District also failed to conduct a functional behavioral assessment (FBA), despite the Student’s maladaptive behaviors and failed to provide for sufficient behavioral support for the Student. The DPC alleges further that the CSE predetermined its recommendations and did not permit the Parent to fully participate. To date, the CSE has failed to provide prior written notice (PWN) of its recommendations.

Substantively, the DPC alleges that the recommended program does not provide the Student with a sufficient level of individualized instruction and support, and he requires a self-contained class throughout the entirety of the school day. The present levels of performance do not provide an adequate baseline, and the goals are vague and unmeasurable (Ex. P-A-2-3).

The Parents seek funding/reimbursement for their unilateral placement at the private school.

FINDINGS OF FACT

The Parent first noted developmental delays when the Student was about 18 months old. He was not walking and talking and started demonstrating tantrumming behaviors, including screaming, hitting and biting (T:59). He was evaluated and received services through Early Intervention (“EI”). He was diagnosed with a global developmental delay and received speech therapy, occupational therapy, physical therapy and special instruction two times per week (T:60).

He began nursery school at the present private school at age 3 and continued to receive all the same services as EI (T:60-61). He was in a classroom of 17 students, exhibited impulsive behaviors and had trouble staying seated in the room and keeping his hands to himself (T:61). The following school year, 2020-21, he attended universal pre-K at the private school in a classroom of approximately 18 students and received all the same services (T:62). The Parent believed that the District evaluated him when he became eligible for services under the Committee on Preschool Education (CPSE) (T:71).

A CSE meeting was held in June of 2021. No additional evaluations were conducted, and the Parent was not consulted regarding the need for any additional evaluations. The Parent attended the CSE meeting via the telephone (T:63). The Parent never received a school placement letter from the District for 2021-22 (T:63, 71-72). She enrolled the Student in the private school.

The Student’s kindergarten class at the private school contained 7 students, 1 teacher and 2 teaching assistants (Ex. L-1). During the 2021-22 school year, the Parent noticed a great deal of progress in his early reading skills, behaviors and ability to attend (T:70). [REDACTED]^[4], the Student’s teacher testified that he made progress in reading. At the start of the year he was unfamiliar with the alphabet. The private school utilized a multisensory language program, Preventing Academic Failure (PAF), and by the end of his kindergarten year he was reading at a Level D, which is an end of kindergarten level (T:31-32; Ex. P-E-2)^[5]. One to one guidance allowed him to make a great deal of progress in both reading and writing (Ex.P-E-2-3; Ex. P-L-2-3). With regard to math, at the beginning of the year he struggled with adding and subtracting on his fingers, but by the end of the year he could calculate double digit addition and subtraction mentally (Ex.P-E-3; Ex. P-L-3).

He improved socially, emotionally and behaviorally, but his behavior remained an issue (T:32-33; Ex. P-E-4; Ex. P-L-4). His teacher used interventions to alleviate behavioral issues such as tactile discs, providing him his own space, behavior charts, breaks one-to-one guidance/instruction in real-time and social-emotional instruction/classes (T:33-36). The class schedule references daily sensory breaks and a weekly social skills class (Ex. P-D). His progress report indicated that he made progress with reading, writing and math, but continued to struggle with impulsivity (Ex. P-E-1).

The school day ran from 8:30 am to 3:45 pm Monday thru Thursday. On Friday, the school day was from 8:30 am to 12:00 pm (Ex. P-D; T:37-38). The Student also received the services of a speech language therapist and occupational therapist (T:41-42; Exs. P-F and G). The occupational therapist worked on his fine motor skills and classroom engagement and by the end of the year he was able to write complete sentences (Ex. P-F; Ex. P-L-3). The speech therapist noted improvement with his social skills and decoding, but overall found his progress to be limited by his impulsivity (Ex. P-G-2).

The Parent testified that the total tuition at the private school for 2021-22 was $100,000. [REDACTED] testified that the $100,000 tuition included any special education and related services, and that the fee is $100,000 whether or not a student receives any related services (T:47-48,53). The OT received payment directly from the District, but the tuition is not discounted in those circumstances (T:49). For speech, the private school paid the provider privately (T:51).

The Parent testified that the family could not afford to pay the tuition in full (T:65; Ex. P-K). The Parents signed the contract with the private school in November of 2021 (T:67; Ex. P-H). The contract states that the tuition is $100,000 for the 2021-22 school year and that the Parents are responsible for payment of that amount minus any amount received by the school district (Ex. P-H-3). The addendum to the contract states that should the Parents not receive prospective payment of tuition by the District, the Parents will be responsible for the full payment of the tuition (Ex. P-H-5). To date, the Parents have paid $6,730 toward tuition and $93,300 is still outstanding (Exs. P-I and J).

CONCLUSIONS OF LAW

The Individuals with Disabilities Education Act (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 Parents 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 Parents’ favor.

In order to meet their burden, the Parents 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 2021-22 school year, and the Parents have met their 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 reading, writing, math and social skills commensurate with his educational disability/classification. Although the record is sparse, and no District IEP or testing was introduced into evidence^[6], the Parents’ testimony and exhibits sets forth evidence of the provision of specific instruction by the private school to meet the Student’s needs. The uncontroverted testimony was that he made progress in the private school program. That progress was commensurate with his needs and delays.

Turning to the equities, the record evidence indicates that the equities generally weigh in the favor of the Parents. They timely advised the District of their dissatisfaction with its failure to offer an appropriate program and placement for the 2021-22 school year and of their intent to seek tuition reimbursement (Ex. P- B). I do, however, find that the amount of tuition should be reduced based upon the amount of time the Student spent in prayer/bible studies at the private school.

The Parents submitted into evidence in support of direct funding of the services the Parents’ 2021 tax return (Ex. K). The family has REDACTED children. The total taxable income reflected on the joint return is [REDACTED]. The total amount owed the private school for the 2021-22 school year is significant - $100,000 minus the $6,700 paid by the Parents. The Parent’s testimony that they lack the financial resources to ‘front’ the costs of private school tuition is uncontroverted and the parents, therefore, have a right to retroactive direct tuition payment relief. Based upon the undisputed evidence presented, the Parents do not have the financial resources to fully fund the tuition. The Parents proposed that if a reduction should be attributed to religious services, it should be 12% (T:80-81). I find that a 12% reduction attributable to religious practice is warranted. A 12% reduction in the tuition equates to $88,000 minus the $6,700 paid by the Parents resulting in a balance owed of $81,300.

Although not requested in the Parents’ closing statement, the DPC raised allegations regarding the District’s failure to fully evaluate the Student. No District IEP or evaluations were entered into the record. Based upon the evidence and testimony, the Student’s behavioral issues continue to interfere with his learning despite a concerted effort on the part of the private school to address his impulsivity, yet it does not appear that the District has conducted a functional behavioral assessment (FBA). The Parent testified that she believed that the Student was evaluated by the District when he was first referred to the CPSE, but I am unable to determine what, if any, evaluations were conducted by the District.

ORDER

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

• • ORDERED that the District shall reimburse the Parents for tuition paid to the [REDACTED] for the 2021-22 school year within thirty (30) days in the amount of six thousand seven hundred dollars ($6,700); and it is further
• • ORDERED that the District shall directly pay to the [REDACTD] within thirty (30) days of the date of this decision eighty one thousand three hundred dollars ($81,300).
• • IT IS FURTHER ORDERED that within 30 days of the date of the decision, unless the parties otherwise agree, a CSE shall convene to determine what additional evaluations, if any, are necessary for the Student.

SO ORDERED.

DATED: November 4, 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

Date

Title of Document

Number of Pages

A 7/20/2022 Impartial Hearing Request 3

B 08/23/2021 Ten Day Letter 1

C Undated [REDACTED] Program Description 3

D Undated Daily Schedule – Kindergarten 2

E Undated Teacher Progress Report 5

F 04/13/2022 Occupational Therapy progress report 5

G 04/24/2022 Speech Therapy Progress Report 2

H 11/05/2021 Enrollment Contract 6

I 09/12/2022 Tuition Affidavit 1

J 10/21/2021-4/26/2022 Proof of Payment 5

K 2021 US Tax Return 2

L 10/14/2022 Affidavit of Testimony of Teacher (REDACTED) 6

M 10/14/2022 Affidavit of Testimony of School Principal (REDACTED) 5

N 10/06/2022 Affidavit of Testimony of School Administrator (REDACTED) 2 IHO Exhibit Document

Date

Pages

I

Email chain from IHO to parties

8/2/22 to 9/8/22

3

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 Parents’ 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] A more detailed list of the admitted exhibits is attached as Appendix B, “Documentation Entered Into the Record,” to this decision.

[4] His teacher holds a Master’s degree in special education and general education, and her application for NYS certification in special education and general education (Birth-2nd grade) is currently being processed (Ex. P-L-1).

[5] In March of 2022, he was reading on a solid Level B (Ex. P-G-1)

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