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Special Education Law
DECISIONParent PrevailedIHO Case No. 231297

New York City Department of Education, Impartial Hearing Decision

February 11, 2023·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: 579254 - NYC: 231297

FINDINGS OF FACT AND DECISION

Case Number: 231297

Student’s Name: REDACTED

School District: New York City Department of Education Hearing Requested by: Parent Request Date/Date Complaint Filed: September 6, 2022

Date(s) of Hearing: October 11, 2022

November 16, 2022

December 1, 2022

January 10, 2023

Actual Record Closed Date: January 29, 2023

Date of Decision: February 11, 2023

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

Hearing Officer: Jean Marie Brescia, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON October 11, 2022

For the Student:

REDACTED, Esq.

For the Department of Education:

None

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

For the Student:

REDACTED, Esq.

REDACTED, Esq.

For the Department of Education:

None

NAMES AND TITLES OF PERSONS WHO APPEARED ON December 1, 2023

For the Student:

REDACTED, Esq.

REDACTED, Esq.

For the Department of Education:

None

NAMES AND TITLES OF PERSONS WHO APPEARED ON January 10, 2023

For the Student:

REDACTED, Esq.

REDACTED, Esq.

REDACTED, Parent

REDACTED, Assistant Head of School and REDACTED Program Director, REDACTED

For the Department of Education:

None

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 September 6, 2022. Ex. A.[1] On September 12, 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 (“REDACTED”) and provision of bus transportation for the 2022-2023 school year. Ex. A at 4.

I conducted a prehearing conference on October 11, 2022. Counsel for REDACTED’s parents appeared; there was no appearance on behalf of the Department. Tr. 2. At the prehearing conference, counsel for REDACTED’s parents clarified the relief requested and the hearing was scheduled for November 16, 2022. Tr. 6.

On November 16, counsel for REDACTED’s parents appeared; no one appeared on behalf of the Department. Parent’s counsel requested that the hearing on the merits be continued in order for REDACTED’s parents to pursue possible settlement with the Department and to seek an Order on Pendency.

The hearing proceeded on December 1 with evidence with respect to pendency, including the admission of Parent’s Exhibits A and B in evidence, and an Order on Pendency was issued on December 3. Again, the Department failed to appear on December 1.

The hearing was completed on January 10, 2023. The Department continued to fail to appear, despite the Impartial Hearing Office sending hearing notices to the Department and reminder emails from the Hearing Officer. Tr. 34-36. Parent’s counsel presented an opening statement; REDACTED’s Assistant Head of School and REDACTED Program Director and REDACTED’s parent testified; exhibits C through K were admitted in evidence.

The Parent requested extensions of the compliance date, and written Orders of Extension was issued on November 22 and December 6, 2022, and January 6, 2023. The reasons for granting the extensions are set forth in the Orders.

The record was closed on January 29, 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 N.Y.C.R.R. § 200.5 et seq.

REDACTED’s parent consented to the hearing proceeding by videoconference and to the transmission of this decision via 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. At the hearing, the Department did not defend the special education program that it offered to REDACTED for the 2022-2023 school year. The issues to be resolved are therefore:

  • • Was REDACTED an appropriate unilateral parental placement for REDACTED for the 2022-2023 school year?
  • • Does the balance of the equities favor REDACTED’s parents?

FINDINGS OF FACT

  • • REDACTED is a REDACTED year-old boy whose disability, for the purposes of the IDEA, is classified as learning disabled. He attends REDACTED grade at REDACTED. Exs. A, D at 1, J at 1.
  • • REDACTED has been diagnosed with REDACTED; REDACTED; and REDACTED. Exs. E at 19-20, K.
  • • REDACTED experiences challenges with respect to attention, behavior, impulsivity, emotional regulation, executive functions (processing speed and working memory), organization, planning, managing his time, and academics, particularly in the areas of writing skills, math and reading comprehension. Exs. E at 20, J, K; Tr. 53-54, 69. REDACTED has been REDACTED from a very young age and is “prone to outbursts” and oppositional behaviors. Tr. 74-75.
  • • REDACTED attended the Department’s REDACTED for kindergarten through fourth grade. Ex. E at 2-3. In second grade, he was evaluated for eligibility for special education and services, was found eligible and placed in an ICT class for the remainder of second grade and for grades three and four. Ex. E at 3; Tr. 93.
  • • REDACTED struggled at REDACTED and refused to attend school; there were times that his father would drive him to school and have to “carry him, kicking and screaming” into the school building; when his mother brought him to school, he would jump from the car and run away. Tr. 82-83.
  • • REDACTED’s teachers at REDACTED reported to his parents that REDACTED was “getting about 30, maybe 40 percent” of what they were teaching him. Tr. 83.
  • • REDACTED’s parents secured an evaluation of REDACTED in 2020. Ex. E. The evaluation included psychiatric interviews and standardized cognitive and learning assessments. Ex. E at 1.
  • • The evaluators recommended that REDACTED attend a school program with small, structured classes in which he could receive teacher support to address his attentional, executive functioning and frustration-related challenges. Ex. E at 20-21.
  • • REDACTED’s parents shared the 2020 evaluation with Department personnel at REDACTED. Tr. 98-99; Ex. D at 1.
  • • REDACTED’s parents enrolled REDACTED at REDACTED for REDACTED grade. Ex. J at 1; Tr. 68.
  • • In spring of 2021, REDACTED’s parents secured a reevaluation of REDACTED. The evaluators continued to recommend that REDACTED attend a structed class setting in which he could receive teacher support for academics and to address his attentional and behavioral needs. Ex. K at 32-33.
  • • The CSE convened an IEP meeting for REDACTED on June 10, 2021. REDACTED’s parent attended the meeting. Ex. D at 22, 28.
  • • The CSE recommended that REDACTED attend ICT classes and receive the related service of counseling (one 30-minute session per week individually and one 30-minute session per week in a group). Ex. D at 22.
  • • REDACTED is a nonpublic special education school enrolling students with learning disabilities, language processing disorders and/or executive functioning difficulties in grades three through twelve. Ex. F; Tr. 52.
  • • REDACTED provides its students with intensive skills remediation, small classes, daily one-to-one REDACTED Program sessions, and an emphasis on social-emotional development. Ex. F.
  • • There are 52 students attending the REDACTED campus that REDACTED attends. Tr. 53.
  • • REDACTED’s schedule at REDACTED includes: literature, science, REDACTED, language skills, lunch, math, physical education, history and art. Ex. I.
  • • “REDACTED” is a one-to-one class period similar to a “resource room” in which the student is “matched” to a teacher or learning specialist with expertise in the areas of the student’s most significant challenges. Each student has individualized and specific REDACTED goals in his or her areas of need, and these goals are addressed daily during the student’s REDACTED period. Tr. 49-50, 62-63; Ex. J at 1.
  • • REDACTED’s REDACTED period, during the current school year, is addressing his executive functioning challenges through practicing time management and organizational strategies. He is also working on organizational skills as they relate to producing written work, on elaborating his ideas in his writing, and utilizing strategies to work deliberately and carefully through the writing process (rather than rushing through his work) and to edit his work. Tr. 63-64; Ex. J at 1-2.
  • • His REDACTED goals also include improving his sustained attention, increasing his self-regulation, and reading comprehension and fluency. Ex. J at 1-2.
  • • REDACTED is provided instruction in small classes with other students who share his challenges with attention, organization and planning; as a result, supports for REDACTED in these areas are built into his entire school day. Tr. 55-56; Ex. J. Such supports include small and structured classes, assignments broken down into segments, breaks, clear expectations, visual organizers, and sequenced assignments. Tr. 56-57, 62; Ex. J.
  • • In the small classes, REDACTED’s attentional issues can be addressed: small classes provide for minimal distractions, a level of “comfort” in participating in the small group, teacher support when he needs it, and ability to ask teachers questions. Tr. 60-61.
  • • In the small classes at REDACTED with the supports he receives from his teachers, he does not demonstrate REDACTED. Tr. 58-59.
  • • REDACTED’s challenges manifest in his difficulties with writing, reading comprehension and math. Tr. 53-54.
  • • REDACTED requires, and his REDACTED teachers provide, support with executive functioning and organization throughout the school day. Ex. J at 1, 3.
  • • In writing, REDACTED needs, and his REDACTED teachers provide, assistance with organizing and elaborating upon his ideas. Tr. 54. He is working on improving his sentence structure, utilizing the writing process (including graphic organizers) and strengthening his executive functioning skills. Ex. J at 3-4.
  • • In reading, REDACTED needs, and his REDACTED teachers provide, “active reading strategies” to attend to reading with specific steps to slow down and to process what he is reading. Tr. 54. He is working on his critical reading skills, comprehension, vocabulary, and executive functioning skills such as academic stamina, following directions and self-monitoring. Ex. J at 3.
  • • In math, REDACTED needs, and his REDACTED teachers provide, much repetition, problems broken down, limited number of problems per page, scaffolding and reference materials. Tr. 54-55. He is working on improving his foundational math skills, math problem solving and computational fluency. Ex. J at 4.
  • • REDACTED also focuses on social-emotional skills utilizing principles of “Qualities of a Sustainable and Independent Learner,” to assist students in developing resilience, organization, problem solving, self-advocacy and self-reflection. Tr. 57-58.
  • • REDACTED has made progress to date during the 2022-2023 school year (tr. 59, 66-67, 84-85, 88-89; Ex. J):
  • • REDACTED is able to follow the steps and processes for completing work with more independence and less teacher support.
  • • He has “improved academic stamina” and is able to maintain REDACTED on school work for longer periods of time without needing to take a break.
  • • He had improved classroom attention and participation and more readily asks for teacher assistance or clarifications.
  • • He is engaged in his school work, is completing his school work, and is learning across his academic subjects.
  • • His organization and time management skills have improved.
  • • REDACTED no longer displays REDACTED in school.
  • • He attends school without complaint.
  • • His outbursts and frustration-related behaviors have diminished.
  • • REDACTED’s parents entered into an Enrollment Agreement for REDACTED’s attendance at REDACTED for the 2022-2023 school year. Ex. G. Under the terms of the Agreement, REDACTED’s parents are obligated to pay the total tuition of $75,500.00. Ex. G at 1.
  • • REDACTED’s parents have paid the entirety of the tuition. Ex. H.
  • • REDACTED’s parents, through counsel, filed a ten-day notice letter with the Department on August 19, 2022. Ex. C.
  • • REDACTED travels by school bus to and from REDACTED. Tr. 91-92.

CONCLUSIONS OF LAW

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).

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 first step in the inquiry is to determine whether the school district offered a free appropriate public education to the student. See, e.g., R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012); 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., 694 F.3d at 189-90. 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 father or his 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 for the 2022-2023 school year?

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 provides REDACTED with an educational program in which his constellation of identified special education needs are addressed. In particular, the record is clear that REDACTED needs the small classes and teacher support to address and remediate his attentional and executive functioning challenges as well as his need for skill-building in reading comprehension, writing and math in a manner that accommodates, modifies for and addresses those very attention and executive functioning difficulties. REDACTED provides REDACTED with such instruction, supports, accommodations, modifications, and services. See paragraphs 15 through 29, above. Furthermore, REDACTED had made progress to date, in light of his unique set of challenges and circumstances, at REDACTED during the 2022-2023 school year. See paragraph 30 above.

The evidence thus demonstrates that REDACTED provides REDACTED 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, sharing evaluative material with the Department, attending IEP meetings, participating in meetings and sharing their concerns with Department personnel, 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).

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

REDACTED’s parents also request that REDACTED’s bus transportation continue for the remainder of the school year. As a student with a disability, REDACTED is entitled to bus transportation to a special education school, thus such transportation should continue for the remainder of the school year.

ORDER

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

1. The Department of Education shall reimburse REDACTED’s parents for tuition paid to REDACTED for REDACTED’s tuition and related services costs for the 2022-2023 school year. The amount of reimbursement for the 2022-2023 school year shall not exceed $75,500.00.

2. The Department of Education shall continue to provide REDACTED with bus transportation to and from REDACTED.

SO ORDERED.

DATED: February 11, 2023

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

Exhibit Number

Date

Exhibit Name

Number of Pages

A 09/06/2022 Impartial Hearing Request 5

B 08/01/2021 Findings of Fact and Decision 35

C 08/19/2022 10-Day Notice 2

D 06/10/2021 Individual Education Program 28

E 2020 Neuropsychological Report 39

F Undated REDACTED Program Description 1

G 2022-2023 REDACTED Enrollment Contract 4

H 01/03/2023 Tuition Affidavit 1

I 2022-2023 Class Schedule 1

J Fall 2022 REDACTED Fall Report 8

K

02/24/2021

Pediatric Developmental Behavioral Assessment

34

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.”