New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 577911 - NYC: 230120

FINDINGS OF FACT AND DECISION

Student’s Name: [REDACTED] (“Student”)

Date of Birth: [REDACTED]

Home District: REDACTED

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

Request Date/Date Complaint Filed: 8/25/22

Date(s) of Hearing: 1/24/23, 5/19/23

Actual Record Closed Date: 6/7/23

Date of Decision: 7/5/23

Hearing Officer: Sebastian A. Weiss, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

MARCH 16, 2023:

For the Student:

[REDACTED]

(“Parent Counsel”)

[REDACTED], Parent (“Parent” or “Mother”)

[REDACTED] (“Unilateral Placement Representative”)

For the Department of Education:

On January 24, 2023:

[REDACTED]

On May 19, 2023:

[REDACTED]

(collectively, “District Counsel”)

INTRODUCTION AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on the Parent’s Due Process Complaint filed on August 25, 2022 (“DPC"). (Ex. A)^[1] The DPC concerns the Student’s special education program for the 2022-23 school year (“School Year”).

The IHO was appointed to this case on August 29, 2022. The hearing on the merits commenced on January 24, 2023 and was completed on May 19, 2023.

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.

ISSUES AND ARGUMENTS

Parent Case:

The DPC alleges that the District denied the Student a Free Appropriate Public Education (“FAPE”) by failing to provide an appropriate Individualized Education Program (“IEP”) and special education placement for the 2022-23 school year (“School Year”). (Ex. A)

The Parents are seeking funding the Student’s unilateral placement at the [REDACTED] (“Unilateral Placement”). At the hearing, the Parents presented the following arguments: (May 19 T 78)

A Committee on Special Education (“CSE”) meeting was conducted on January 31, 2022 and the CSE recommended the student for placement in an inappropriate ICT (Integrated Co-Teaching, or “ICT”) class setting with SETSS (Special Education Teacher Support Services, or “SETSS”). This program is typically reserved for children who should be in self-contained classes but who cannot be accommodated for such a recommendation based on the offerings available at their zoned school placement.

The IEP developed for the Student is targeted for the balance of the 2021-22 school year and does not take the 2022-23 school year into account. During the CSE meeting, the parent indicated that they had already attended an ICT class at their locally zoned school and that the student had failed to make reasonable progress during his time there.

The IEP contains evaluation results from 2019 and 2021 without properly and clearly identifying and distinguishing them. The 2019 data was outdated. The annual goals management needs are generic, vague, and inappropriate.

The parent attempted to visit the District’s proposed placement at the REDACTED School in September of 2022 and was refused admission.

On timely notice to the District, the Student been attending the Unilateral Placement and has made progress in academics, social skills, and emotional development.

The Parents have been making payments pursuant to the Unilateral Placement Enrollment Contract.

The Parents presented eleven (11) documents into evidence and testimony from two witnesses.

District Case:

In its opening statement, the District argued that the Student was provided a FAPE for the School Year by being offered a small classroom educational environment in a small school with a suitable peer group and with an IEP and related services that enabled him to make measurable progress in the time he was enrolled in public school. (Jan. 24 T 35) In addition, the District argued that the Unilateral Placement is not appropriate and that the equities of the case favor the District.

The District presented seven (7) documents into evidence and did not present any witness testimony.

FINDINGS OF FACT

The Disability Classification indicated in the Student’s IEP is Other Health Impairment. (Ex. 3-1) The Student is described as a bright and social student who struggles with focus, attention, self regulation and has symptoms of hyperactivity. (Ex. 3-8, 6) The Student has been diagnosed with the following: (Ex. 6-8)

• [REDACTED];

• [REDACTED]

The School Year is the Student’s [REDACTED] grade year. The IEP developed during the prior school year indicates that the Student’s Instructional/Functional Levels for both Reading and Math is [REDACTED] grade. (Ex. 3-22)

From REDACTED through REDACTED grade, until end of the 2020 school year, the student attended the District Placement.

For the 2020-21 school year, the Student attended the [REDACTED], a public school located in [REDACTED], where the family relocated during the pandemic. (May 19 T 142)

For the 2021-22 school year (“Prior School Year”), the Student attended the Unilateral Placement. (May 19 T 103)

On April 19, 2021, an independent Neuropsychological and Educational Evaluation was conducted by a Clinical Neuropsychologist at [REDACTED] (“Evaluation”). (Ex. 6) The recommendations set forth in the Evaluation include the following: (Ex. 6-9)

• Placement in a specialized school designed for children with learning disabilities and executive functioning weaknesses;

• Placement with peers of similar cognitive abilities yet require additional intervention to address learning, and who do not exhibit significant behavior problems;

• Individual and/or small group instruction in writing skills;

• Classroom accommodations;

• Occupational Therapy (“OT”) in order to address handwriting and fine motor development;

• An assistive technology evaluation to determine what supports the Student can utilize in the classroom to assist with writing;

• Medication management in conjunction with behavioral therapy. Parent Management

Training and behavioral therapy is recommended to help the parents learn and implement skills to assist in improving attention and executive functioning. It is also recommended that the family consult with a child psychiatrist to discuss medication management.

On January 5, 2022, the District prepared an Educational Update for the Student. (Ex. 7) The Educational Update states that the Student requires 1:1 support with respect to certain aspects of English Language Arts, Math and Executive Functioning. The Educational Update further states that the Student requires teacher cueing, repetition, and a small group setting.

In January 2022, the Unilateral Placement prepared a Mid-Year Progress Report for the Prior School Year. (Ex. G)

On January 31, 2022, a CSE meeting was held and an IEP was developed for the Student which recommended the following ten month program and placement (“2022 IEP”): (Ex. 3):

• Integrated Co-Teaching (“ICT”) program and three periods per week of SETSS in a group. • Placement in an NYC DOE Non-Specialized School.

The 2022 IEP states that the Student requires a small group setting. (Ex. 3-9)

The Implementation Date set forth in the 2022 IEP is 2/14/22. (Ex. 3-1)

The 2022 IEP is the most recent IEP developed for the Student. (May 19 T 149)

The IEP Meeting Minutes indicate the following participants at the meeting: District Psychologist, District Special Education Teacher, Parents, and Unilateral Placement Teacher. (Ex. 5-1) The IEP minutes also indicate that the Parent expressed concern that an ICT would not be the best setting for the Student. (Ex. 5-2)

On Feb. 9, 2022, the District issued a Prior Written Notice (Notice of Recommendation) and a School Location Letter for the Student. (Ex. 1, 2) The Prior Written Notice summarizes the educational program set forth in the 2022 IEP, and the School Location Letter specifies that the program will be provided at Spruce Street School, P.S. 397 (“District Placement”).

On Feb. 11, 2022, the Parents entered into an Enrollment Contract with the Unilateral Placement for the School Year.

In June 2022, the Unilateral Placement prepared an End-Year Progress Report for the Prior School year. (Ex. H)

On August 15, 2022, the Parent filed a Joint Ten Day Notice Letter and Due Process Complaint and with the District. (Ex. A)

The Unilateral Placement Program Description states that it provides students with small group settings designed to meet their individual needs. (Ex. C) The Program Description further states that it provides comprehensive program for academic success and social and emotional growth, including literacy and math instruction, science, art, performing arts, physical education, health education, library classes, technology integration classes, and a social skills curriculum. Related services are also provided to each student as necessary. (Id)

At the Unilateral Placement, the Student receives OT three times per month in 30 minute sessions as well as counseling once per week in a group. (Ex. G-8)

The School Year at the Unilateral Placement started on September 6, 2022 and ends on June 14, 2023. (Ex. I) On September 9, 2022, the Parent sent an email to Parent Counsel regarding her visit to the District Placement. (Ex. B)

On January 12, 2023, the Unilateral Placement issued an Affidavit of Tuition Payment which indicates that the Parents have paid $48,750 in tuition for the School Year, with an outstanding balance of $18,750. (Ex. E) The Mother testified that the Parents subsequently paid the outstanding balance.

In January, 2023, the Unilateral Placement issued a Mid-Year Progress Report for the School Year.

Witness Testimony

I. Unilateral Placement Representative The Parents presented the direct testimony of the Unilateral Placement Representative at the hearing. (May 19 T 83) A summary of the most relevant testimony is as follows:

The Unilateral Placement Representative works in the enrollment management department at the Unilateral Placement, and her current position is CSE Liaison.

The Unilateral Placement Representative has a master's degree in clinical literacy and special education and is also certified to teach Wilson Foundations which is a multisensory reading decoding program.

The Unilateral Placement Representative has experience teaching kindergarten and 1st grade in public schools. She also worked as a private literacy clinician and as director of academic resources at a private school.

The Unilateral Placement is a coed private special education school for students in kindergarten through 12th grade, and all of the students have a language-based learning disability. The students have average to high average cognitive ability and are social.

There are 401 students enrolled at the Unilateral Placement. The small student-to-teacher ratio allows for one-to-one support, scaffolding and small group work. Classes are maintained at a 12:1:1 model. Each class has either a head teacher and an assistant teacher or two co-head teachers, and that includes academic classes, as well as extracurricular special classes such as music or PE. Reading groups, classes, and math groups can be smaller than 12 based upon the level of the students for that class. All of the head teachers hold master's degrees in special education and are certified to teach in New York State. All of the assistant teachers have at least their bachelor's degrees, and most are working already on their master's degrees in special education. Providers hold certification in their discipline and are state approved. The faculty frequently engages in professional development.

The Unilateral Placement Representative knows the Student by seeing him in the halls and she knows his teachers, his providers, and his family. She has spoken to the Student’s teachers regarding his progress.

The Student receives related services at the Unilateral Placement.

The Student had made progress in his decoding. For executive functioning, the Student struggles with starting tasks and writing tasks. Regarding social skills, the Student is in a weekly counseling group with five other peers that's led by a psychologist.

The Student has had a positive experience at the Unilateral Placement and is progressing academically.

An ICT classroom is not appropriate for the Student because there can be up to 30 students. Although there are students with IEPs, about 40 percent of the Students don't necessarily have languagebased learning disabilities. The reason the Student has made such progress in decoding and writing is because he's in a class of 12 students who also have language-based learning disabilities.

The teachers and providers, including the speech and language support therapist, are trained to teach students with language-based learning disabilities.

II. Mother The Parents presented the direct testimony of the Student’s Mother at the hearing. A summary of the most relevant testimony is as follows:

From pre-K through 2nd grade, until end of the 2020 school year, the student attended the District Placement where he was in an ICT classroom with 34 students in the classroom. (Id 142)

The Student struggled at the District Placement during the 2019-2020 school year. (Id 141, 146) The Mother was on the PTA at the District Placement. (Id 143)

The Student’s Family relocated to Massachusetts during the pandemic and returned to New York for the Prior School Year. (Id 142) While living in Massachusetts, the Student was still struggling with executive function and particularly with writing, and the Mother employed someone at the Unilateral Placement to work with the Student on developing his writing skills. (Id 144)

The District offered the Parents tuition reimbursement for the Student’s placement at the Unilateral Placement for the Prior School Year. (Id 146)

The Mother participated in 2022 IEP meeting and expressed disagreement with the proposed ICT placement. (Id 147)

The Student has made progress at the Unilateral Placement. (Id 151)

The Parents would have considered a public school placement for the Prior School Year and School Year if appropriate. (Id 152) The Parents have paid all of the Unilateral Placement tuition for the School Year. (Id 155)

The District did not present any witness testimony.

SUMMARY OF APPLICABLE LAW

The IDEA is a comprehensive statutory framework established by the United States Congress to ensure that students with disabilities are afforded a FAPE. 20 U.S.C. §1400(d)(1)(A); see Schaffer v. Weast, 126 S. Ct. 528 (2005); Bd. of Educ. v. Rowley, 458 U.S.176 (1982); Frank G. v. Bd. of Educ., 459 F.3d 356 (2d Cir. 2006). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP, which is reasonably calculated to enable the student to receive educational benefit. See Rowley; 20 U.S.C. § 1401(9)(D); 34 C.F.R. § 300.17; see 20 U.S.C. § 1414(d); 34 C.F.R. § 300.22. The student’s recommended program must also be provided in the least restrictive environment. 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. § 300.114(a)(2); 8 NYCRR 200.6(a)(1).

In Endrew F. v. Douglas County School District, 580 U.S. 999, 14 (2017), the Court held that, “[t]o meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances, as a focus on the particular child is at the core of the IDEA. The instruction offered must be “specially designed” to meet a child’s “unique needs” through an “individualized education program.” §§1401(29), (14) (emphasis added), to reflect the fact that a contemplated IEP must be focused on the “particular child that is at the core of the IDEA.”

Pursuant to New York Education Law §4404(1)(c), the board of education shall have the burden of proof, the burden of persuasion, and the burden of production in impartial hearings except for instances where the parent is seeking tuition reimbursement for a unilateral parental placement and in those cases the parent shall have the burden of persuasion and the burden of production as to the appropriateness of the placement. The burden of proof in matters such as this shall only be met upon a fair preponderance of the evidence. The preponderance of the evidence standard requires the trier of fact to find that the existence of a fact is more probable than its nonexistence. Concrete Pipe & Products of California, Inc. v. Construction Laborers Pension Trust for Southern California, 508 U.S. 602, 622 (1993). In other words, preponderance of the evidence is evidence that is more convincing than the evidence offered in opposition to it. Greenwich Collieries v. Director, Office of Workers’ Compensation Programs, 990 F. 2d 730, 736 (3rd. Cir. 1993), aff’d, 512 U.S. 246 (1994).

The decision in this case rests on a determination of the three-pronged test set forth by the United States Supreme Court, which provided that a board of education may be required to pay for educational 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. Dept. of Educ., Massachusetts, 471 U.S. 359 (1985); Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993).

Under the second prong of the Burlington/Carter test, the parents bear the burden of proving the appropriateness of the Residential Placement. See M.S. v. Board of Education of the City of Yonkers, 231 F.3d 96, 104 (2d Cir. 2000); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 94-29; Application of a Child with a Disability, Appeal No. 95-57. In order to meet that burden, the parents must show that Residential Placement offered an educational program designed to meet the Student’s special education needs. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 98-76; Application of a Child with a Disability, Appeal No. 94-29. A Residential Placement is only appropriate if it provides education instruction specifically designed to meet the unique needs of a handicapped child. Gagliardo v. Arlington Central School District, 489 F.3d 105 (2d Cir. 2007).

Regarding the placement of students with disabilities, N.Y. Comp. Codes R. & Regs. tit. 8 § 200.6(a)(3) states: “Students with disabilities placed together for purposes of special education shall be grouped by similarity of individual needs as defined in section 200.1(ww) of this Part, in accordance with the following: (i) The range of academic or educational achievement of such students shall be limited to assure that instruction provides each student appropriate opportunities to achieve his or her annual goals. The learning characteristics of students in the group shall be sufficiently similar to assure that this range of academic or educational achievement is at least maintained. (ii) The social development of each student shall be considered prior to placement in any instructional group to assure that the social interaction within the group is beneficial to each student, contributes to each student's social growth and maturity, and does not consistently interfere with the instruction being provided. The social needs of a student shall not be the sole determinant of such placement. (iii) The levels of physical development of such students may vary, provided that each student is provided appropriate opportunities to benefit from such instruction. Physical needs shall be considered prior to determining placement to assure access to appropriate programs. The physical needs of the student shall not be the sole basis for determining placement. (iv) The management needs of such students may vary, provided that environmental modifications, adaptations, or, human or material resources required to meet the needs of any one student in the group are provided and do not consistently detract from the opportunities of other students in the group to benefit from instruction.”

Regarding least restrictive environment, N.Y. Comp. Codes R. & Regs. tit. 8 § 200.1(cc) states that “Least restrictive environment means that placement of students with disabilities in special classes, separate schools or other removal from the regular educational environment occurs only when the nature or severity of the disability is such that even with the use of supplementary aids and services, education cannot be satisfactorily achieved. The placement of an individual student with a disability in the least restrictive environment shall: (1) provide the special education needed by the student; (2) provide for education of the student to the maximum extent appropriate to the needs of the student with other students who do not have disabilities; and (3) be as close as possible to the student's home.”

ANALYSIS AND DECISION

For cases seeking payment for tuition at a Unilateral Placement, the first prong of the Burlington/Carter analysis is whether the District has met its burden of proof regarding whether the Student was provided a FAPE for the School Year.

The District presented an opening statement and evidence but did not present any witness testimony. The evidence presented by the District, including the Evaluation, 2022 IEP and Educational Update, indicates that the Student requires specialized instruction and support, such as a small group setting, 1:1 instruction or assistance with certain tasks, placement in a specific peer group, repetition, redirection, teacher cues, and OT.

However, the District did not sufficiently establish that the ICT program and placement recommended by the 2022 IEP meets the Student’s specialized needs or is otherwise appropriate. The Student previously attended an ICT program where he struggled.

The 2022 IEP indicates that the Student is at least one year behind grade level in both reading and math. The Unilateral Placement Representative, who is the only witness presented with experience in special education, testified that an ICT class would not be an appropriate placement for the Student.

The 2022 IEP also does not include any related services such as OT, which is recommended by the Evaluation and provided at Unilateral Placement, or counseling services, which is provided at the Unilateral Placement.

Based on a preponderance of the evidence standard, I find that the District did not meet its burden of proof and that the Student was not provided a FAPE for the School Year because the evidence presented at the hearing indicates that the Student requires a more specialized educational program and placement than what was offered by the District.

With respect to the second prong of the Burlington/Carter analysis, the issue for adjudication at the hearing was whether the Unilateral Placement was appropriate. Under the Burlington/Carter analysis, the Parent bears the burden of proof in this regard.

The Parent has presented evidence and witness testimony indicating that the Unilateral Placement offers a specialized special education program with small group instruction that is appropriate for the Student.

The Unilateral Placement Representative and Mother both testified regarding the appropriateness of the Unilateral Placement, and I credit their testimony. In addition, the Unilateral Placement Progress Reports provide a detailed description of the Student’s performance at the Unilateral Placement. The Student receives related services at the Unilateral Placement, such as OT and counseling.

I find that the Parents presented sufficient evidence and testimony to meet their burden of proof regarding the appropriateness of the Unilateral Placement. By comparison, the District did not present sufficient evidence or testimony to challenge the appropriateness of the Unilateral Placement.

The third prong of the Burlington/Carter analysis considers the equities of the case. The Parent participated in the 2022 IEP meeting and expressed concern that an ICT class would not be the best setting for the Student. In addition, the Parents provided a timely Ten Day Notice to the District for the School Year. The District did not contest the equities of the case at the hearing.

In concluding the Burlington/Carter analysis, I find that the Student was not provided a FAPE for the School Year, that the Unilateral Placement was appropriate, and that the equities of the case also support payment for the Student’s tuition at the Unilateral Placement for the School Year.

ORDER

Based upon the above Findings of Fact and Decision, it is hereby ordered:

1. The Student was not provided a FAPE for the School Year;

2. The District shall reimburse the Parents for tuition paid to the Unilateral Placement for the School Year.

SO ORDERED.

DATED: July 5, 2023

/s/ Sebastian A. Weiss, 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.

APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

A. Impartial Hearing Request 8/15/22 4 pages

B. Parent Email 9/2/22 1 page

C. Unilateral Placement Program Description Undated 1 page

D. Unilateral Placement Enrollment Contract 2/11/22 5 pages

E. Unilateral Placement Tuition Affidavit 1/12/23 1 page

F. Unilateral Placement Class Schedule Undated 1 page

G. Unilateral Placement Mid-Year Progress Report January 2022 9 pages

H. Unilateral Placement End-Year Progress Report June 2022 13 pages

I. Unilateral Placement Attendance 1/9/23 1 page

J. Neuropsychological and Educational Evaluation October 2019 16 pages

K. Unilateral Placement Mid-Year Report Card January 2023 12 pages

DOE EXHIBITS

1. Prior Written Notice 2/9/22 4 pages DOE

2. School Location Letter 2/9/22 7 pages DOE

3. IEP 1/31/22 24 pages DOE

4. IEP Attendance Page 1/31/22 1 page DOE

5. IEP Meeting Minutes 1/31/22 2 pages DOE

6. Neuropsychological and Educational Evaluation 4/19/21 19 pages DOE

7. Educational Update 1/5/22 4 pages DOE

Footnotes

[1] Exhibits, or “Ex.”, shall be referred to as follows: “P” for Parent Exhibits, which are otherwise indicated alphabetically; “D” for District Exhibits, which are otherwise indicated numerically; “JE” for Joint Exhibits; “CB” for closing brief; “IHO” for any Impartial Hearing Officer’s exhibits; and “T” for the hearing transcript, accompanied by the applicable hearing date.