New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 579477 – NYC: 231484

INTRODUCTION

On September 13, 2022, I was appointed to conduct an impartial hearing pursuant to 20 U.S.C. §1415, regarding the special education program of [[REDACTED] ("[REDACTED]"); the hearing was held on September 19 and December 14, 2022, and February 1, 2023, and a hearing session scheduled for October 25, 2022 was adjourned at the parties’ request. Lists of persons in attendance and documents received in evidence are appended to the record.

The decision deadline was extended at the parties’ request on October 25, 2022 to allow for settlement negotiations. Before granting the extension request, I determined that the matter involved a past school year, and that the extension would have no adverse impact on the child’s educational interest or well-being, and no adverse financial or other detrimental consequences for the parties. I also determined that the extension requests were not based on school vacations, or scheduling conflicts of the parties or their representatives.

BACKGROUND

[REDACTED] is a [REDACTED] year old student classified with a speech or language impairment, who attends the [REDACTED] School (“[REDACTED]”), a non-approved, non-public program; classification is not disputed. (T. 27). [REDACTED], attorney for [REDACTED]’s parent, requested the hearing on September 6, 2022 (Exh. A), alleging that the department of education failed to offer [REDACTED] FAPE for 2022/23, because the most recent IEP, dated October 19, 2021 is substantively and procedurally deficient, and the recommended class was not appropriate; the parent seeks department of education funding for [REDACTED]’s 2022/23 tuition at [REDACTED], and transportation. On December 7, 2022, the parent’s attorney filed an amended due process request that added allegations that an IEP dated October 25, 2022, after the start of the school year and filing of the original hearing request, was also substantively and procedurally deficient; the same relief was sought. (Exh. C).

On September 19, 2022, I granted the request of the parent’s attorney for an order determining that [REDACTED] is [REDACTED]’s “pendency” program, pending resolution of this matter, based upon a prior impartial hearing decision dated December 11, 2020 (Exh. B).

III. The CSE’s Case The department of education did not present any witnesses, or submit any documents into evidence. (T. 26-27). The department’s representative argued that the [REDACTED] tuition contract does not impose an obligation on the parents to pay tuition if they are not awarded funding. (T. 48-49).

IV. The Parent’s Case The parent submitted the Affidavit in Lieu of Testimony of [REDACTED] (Exh. N), Principal of [REDACTED] Elementary School, who has a M.S. and certification in special and general education, and experience as a classroom teacher, school administrator, program developer and coordinator; her duties include overseeing the educational program, hiring and training staff members, developing curricula, supervising teachers, observing students, reviewing students’ IEPs, goals and progress reports, communicating with parents, participating in CSE meetings, and coordinating team meetings. The [REDACTED] Elementary School program in Brooklyn is a small special education program for students ages 5 through 14, who require small classes, intensive teaching, individual supports, and differentiated instruction. There are 22 students attending in 2022/23. Staff includes special education teachers, classroom assistants, related services therapists (speech therapists, occupational therapists, physical therapists, counselors), and paraprofessionals. There are also a reading specialist curriculum coach and a math coach, who observe students, suggest modifications to curriculum, and help develop individual programs. [REDACTED] staff has professional development several days at the start of the school year, and five or six days during the year. [REDACTED] entered [REDACTED] in September, 2016. Ms. [REDACTED] observes her informally daily in the hallways, the classroom and the lunchroom, and has frequent communication with [REDACTED]’s teacher and therapists regarding her academic and emotional progress. [REDACTED] is generally obedient, when in a non-challenging environment; she shows relative strengths in listening comprehension and math computation. [REDACTED] presents with delays in cognitive abilities, language, learning, and moderate anxiety; she performs at approximately second/third grade level in reading and math. [REDACTED] struggles with decoding words and text, fluency, independent writing, and problem solving, and critical thinking. When uninterested in the subject matter or activity at hand, [REDACTED] can become distracted and lose focus. [REDACTED]’s anxiety impacts her educational performance: she can be moody and dysregulated, which impedes her ability to function. When dysregulated, [REDACTED] does not make eye contact, hunches her shoulders, and appears uncomfortable, especially if a staff member asks her what is wrong; at times she displays characteristics of selective mutism, such as refusing to speak or speaking in whispers. In these instances, [REDACTED]’s teachers will ‘give her space’ and let her know that they are there for her when she is ready. [REDACTED] requires a lot of individual attention, prompting, differentiated instruction and support. [REDACTED] is in class of 8 students aged 11-13, who are chronologically 6th and 7th graders, and are homogenous in terms of abilities: on second/third grade level in reading and math, with similar learning styles and speed. The teacher is certified in special education, and the classroom assistant is working toward a M.S. in special education; three of the students have 1:1 paras. [REDACTED] receives key instruction either in small groups or 1:1. Tasks are broken down. Strategies are used to aid in reading comprehension and writing tasks. Behavioral supports include positive reinforcement and a behavior support system using token prizes and verbal praise. Multimodality/multisensory approaches are used to teach new lessons. [REDACTED] requires a small class environment to learn, because of her focus/attention difficulties. [REDACTED] provides individualized supports and accommodations to address [REDACTED]’s needs and deficits, e.g., frequent opportunities for 1:1 and 2:1 instruction, individualized instruction, prompting and positive reinforcement to encourage her to use a louder voice, and social skills and counseling sessions. [REDACTED] has grown more confident and comfortable with both peers and adults, which has contributed to progress in speech/language skills. [REDACTED]’s daily schedule (Exh. I) includes: Arrival/Prayer, during which she exhibits good gross motor skills and understanding of class routine and has breakfast, which provides 1:1 assistance and work on Activities of Daily Living Skills; Morning Meeting, which encourages communication and trust among students, strengthens language development, and fosters social skills; Calendar Math, which uses manipulatives, and guided daily lessons to reinforce math concepts; daily Reading instruction, using the Wilson Reading System, a multisensory structured language program for decoding and encoding, and placement into a small instructional group based on an initial assessment; literacy instruction uses a variety of approaches and materials to supplement the Wilson Program, and the school’s reading specialist continuously works with teachers regarding students’ program and progress; Social Skills class, led by a school social worker, using worksheets, videos, modeling, and role play; Language Arts, including spelling, creative writing, journal writing, handwriting,poetry, and reading aloud; 1:1 speech/language therapy with a licensed therapist; 1:1 occupational therapy with a licensed therapist, plus work in [REDACTED]'s sensory gym; Math, which uses a research-based multisensory approach and concrete instructional material, with input from the school’s math coach, who consults with the classroom teacher regarding students’ programs and progress; [REDACTED] receives 1:1 counseling with a school social worker, to address her anxiety, shyness, moodiness, and self-esteem; there is a weekly gym class, which addresses gross motor skills, socialization skills, turn taking, and pragmatic communication; Music; Art; Activities of Daily Living; Scholastic News, which tracks content taught in Science and Social Studies; Social Studies; Science; Holidays/Customs; and Hebrew as a Foreign Language – this is a secular course that complements the Wilson Reading System used in the Reading class. Approximately 9.5% of [REDACTED]’s schedule is religious (15 minutes of daily prayer, and 30 minute holiday and customs class 4 days per week). [REDACTED] developed Annual Goals for [REDACTED] in Reading, English Language Arts, Math, Speech, Occupational Therapy, and Counseling. Progress toward goals is tracked by teacher and therapists, and a Goal Progress Report and Report Card are issued in January and June. In order for a student to Achieve a Goal the student must perform the skill at least 80% accuracy with independence; steady progress indicates a student is working between 60% and 80% success with supports; less than 60% progress is considered inconsistent. During 2022/23, [REDACTED] has achieved several goals and is steadily progressing: in reading, she is progressing in decoding, has improved her vowel sounds and consonant blends, is learning to recognize story elements, can answer questions based on a story, and has improved comprehension skills; in math, [REDACTED] has mastered adding skills and is working on subtraction, and improving number sense and money skills. (Exhs. J, K, L). [REDACTED] offers students monthly mainstreaming opportunities with students from a nearby general education school; activities include introduction and greeting, conversations, 1:1 work on different arts activities, music and dance. [REDACTED] benefits from the opportunity to work on conversation, communication, and socialization skills with typically developing peers. [REDACTED] staff maintains consistent communication with the parent, [REDACTED]’s teacher and the parent communicate often by email, and the parent participates in parent teacher conferences. [REDACTED] staff are available by email or phone to answer questions and address concerns. [REDACTED] is an appropriate program for [REDACTED], because it offers the supports she requires to learn and progress: a small class, much adult support, 1:1 individualized instruction, required related services, and supports to address [REDACTED]’s anxiety. [REDACTED]’s Goals are tailored to [REDACTED]’s needs and she has made steady academic and social progress, including increased communication with peers and adults.

Ms. [REDACTED] reviewed [REDACTED]’s October 25, 2022 IEP, and opined that the recommended 12:1:1 class would not be an appropriate program for [REDACTED], because she would be unable to learn and concentrate in a class thar large, and would likely become highly anxious and overwhelmed, which would cause her to become dysregulated and unable to function properly; [REDACTED] requires staff who are trained to work with students with mutism and offer positive behavior intervention.

The Parent’s Affirmation in Lieu of Testimony (Exh. O) states that [REDACTED] was diagnosed with Autism Spectrum Disorder at age seven; she also is diagnosed with anxiety, has social anxiety and often will not speak if overwhelmed, will tantrum and cry when frustrated, and had significant academic delays and language impairments. [REDACTED] entered [REDACTED] in September, 2016; Mr. [REDACTED] states that [REDACTED] is an appropriate program to address [REDACTED]’s difficulties in academics, behavior, and social and emotional functioning, because it offers small classes and a great deal of support.

The department last evaluated [REDACTED] Rochel in 2020, with Mr. [REDACTED]’s consent. The most recent IEP meeting prior to the start of the 2022/23 school year was on October 19, 2021. On June 2, 2022, Mr. [REDACTED] received a School Placement Letter recommending placement in K354. Mr. [REDACTED] contacted the school and spoke with a parent coordinator, who informed him that the students in the recommended class had different reading and math levels and classifications, that ‘…the program was academic and not behavioral,’ and that there was no 1:1 instruction unless the student was assigned a 1:1 para. Mr. [REDACTED] was concerned that the recommended class did not offer sufficient emotional and academic support, and that [REDACTED] could not function well in a large school building with multiple classes grouped together for lunch and gym. On June 15, 2022, Mr. [REDACTED] informed the CSE of his concerns about the program, and that the CSE had not convened an IEP meeting for the 2022/23 school year (Exh. D); he received no response. Mr. [REDACTED] signed the 2022/23 [REDACTED] tuition contract on August 11, 2022; tuition is $98,000, and the parents are fully responsible for payment, although they cannot afford to do so ‘up front,’ and have made no payments. (Exhs. G, H, M). An IEP meeting was held on October 25, 2022, after the start of the 2022/23 school year. Participants were Mr. [REDACTED], [REDACTED]’s [REDACTED] teacher, and a department representative; [REDACTED] provided written progress reports. The CSE recommended a 12:1:1 class. Both Mr. [REDACTED] and the teacher told the CSE that the recommended program was not appropriate because it did not offer sufficient support to address [REDACTED]’s issues with focus, attention, and anxiety, and did not have 1:1 instruction. Mr. [REDACTED] told the CSE he was open minded to considering an appropriate public school program. The CSE did not discuss any smaller class programs. Mr. [REDACTED] provided the CSE with a pediatrician’s recommendation for limited travel time transportation, because of [REDACTED]’s anxiety and frustration. On November 2, 2022 Mr. [REDACTED] received a copy of the IEP by email, but no school placement recommendation; on November 10, 2022 he notified the CSE that he had not received a school placement recommendation. (Exh. E). On November 30, 2022 Mr. [REDACTED] received a School Location Letter again recommending K354; he had previously notified the CSE of his concerns that the school was not appropriate for [REDACTED] Rochel. Mr. [REDACTED] states that [REDACTED]’s social and academic skills have improved at [REDACTED], and the program is appropriate for her.

The Psycho-Educational Evaluation (Exh. F), done in September, 2020, as part of a triennial evaluation, notes that [REDACTED] achieved extremely low scores in tests of cognitive ability, and very low scores in tests of academic achievement. Communication, daily living, and social skills were all in the low range.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

I find that [REDACTED]’s parent is entitled to department of education payment for [REDACTED]’s 2022/23 tuition and related services at [REDACTED], because the CSE failed to recommend an appropriate program and placement for [REDACTED], [REDACTED] is an appropriate educational program for [REDACTED], and equitable considerations support a tuition award.

A central purpose of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][1][A]; Bd. of Educ. v. Rowley, 458 U.S. 176, 179-81, 200-01 [1982]; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [2d Cir. 2006]). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a written IEP (20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.17[d]; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.320). A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]). The IDEA directs that, in general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). 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). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Walczak, 142 F.3d at 130). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the LRE (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Walczak, 142 F.3d at 132). An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services (Application of the Dep't of Educ., Appeal No. 07-018).

In Florence County School District Four at al. vs. Carter, 510 U.S. 7 (1993) ("Carter"), the U.S. Supreme Court held that a court may order reimbursement for parents who unilaterally withdraw their child from a public school that provides an inappropriate education under IDEA and put the child in a private school that provides an education that is otherwise proper under IDEA but is not approved by the state education agency pursuant to IDEA (20 U.S.C. §1402(8)(B)). In Carter, the Court held that a parental placement is proper if the private school is reasonably calculated to enable the child to receive educational benefits. To win reimbursement under Carter, it must be shown that (1) the public placement violates the IDEA, (2) the private placement is proper and is reasonably calculated to enable the child to receive educational benefits, and (3) equitable factors, such as the appropriate and reasonable level of reimbursement, communication and cooperation between the parents and the CSE, and the parents’ knowledge of and timely exercise of their due process rights, support the payment award.

The standards for determining whether a unilateral private school placement is "appropriate" under the IDEA are similar but not identical to the standards for assessing the adequacy and appropriateness of a proposed public placement. Subject to certain limited exceptions, the same considerations and criteria that apply in determining whether the school district's placement is appropriate should be considered in determining the appropriateness of the parents' placement." Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007). The issue turns on whether a placement -- public or private -- is reasonably calculated to enable the child to receive educational benefits. A private placement meeting this standard is one that is likely to produce progress, not regression. Parents are not barred from reimbursement where a private school they choose does not meet the IDEA definition of a free appropriate public education, and an appropriate private placement need not meet state education standards or requirements. Frank G. v. Bd. of Educ., 459 F.3d 356, 364 (2d Cir. 2006). A private placement need not provide certified special education teachers or an IEP for the disabled student. The test for the parents' private placement is that it is appropriate, and not that it is perfect. A student's academic progress in a unilateral private placement is relevant, but not dispositive, of the determination of whether it is appropriate. 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. The Second Circuit has cautioned that progress does not itself demonstrate that a private placement was appropriate, and that even where there is evidence of success, courts should not disturb a state's denial of IDEA reimbursement where the chief benefits of the chosen school are the kind of educational and environmental advantages and amenities that might be preferred by parents of any child, disabled or not. A unilateral private placement is only appropriate if it provides education instruction specifically designed to meet the unique needs of a handicapped child. Gagliardo, 489 F.3d at 115.

I find that [REDACTED]’s parent met the Carter requirements. The CSE did not present any witnesses or offer any documents into evidence; I conclude that the department of education did not offer FAPE to [REDACTED] for 2022/23.

[REDACTED] offers a supportive, structured, small class environment, with multi-sensory instruction, specialized reading instruction, individual and small group instruction, and related services; the program effectively addresses [REDACTED]’s significant delays. The curriculum is individualized to each student, and provides the intensive modifications, supports and strategies, which [REDACTED] requires, including training in activities of daily living and a behavior plan. The program staff includes certified/licensed teachers and related service providers. The staff developed goals for [REDACTED], and regularly monitors progress and modifies the program to suit her developing needs. Regular progress reports are issued, and the record indicates that [REDACTED] made progress at [REDACTED]. There are mainstreaming opportunities, and the program encourages parent participation. [REDACTED]’s [REDACTED] program is reasonably calculated to ensure that [REDACTED] benefits educationally and makes academic and social progress, and provides an education in substantial compliance with all the substantive requirements of IDEA.

I find that equitable considerations also support a tuition award: the parent fully cooperated and communicated with the CSE and made a timely hearing request, and the amount requested is reasonable.

I find that the parent is entitled to direct tuition funding. See: Burlington, supra, “In a case where a court determines that a private placement desired by the parents was proper under the [IDEA] and that an IEP calling for placement in a public school was inappropriate, it seems clear beyond cavil that “appropriate” relief would include a prospective injunction directing the school officials to develop and implement at public expense an IEP placing the child in a private school”; D.A. vs. N.Y.C. Dept of Education, 09-CIV-5097 (SDNY, 2/1/11), which held parents who satisfy the Burlington/Carter factors have a right to retroactive direct tuition payment, and that the exercise of rights under IDEA cannot be made to depend on the financial needs of a disabled child’s parents; Connors vs. Mills, 34 F.Supp 2d 795 (NDNY, 1998), “[when]…a parent shows that his or her financial circumstances eliminate the opportunity for unilateral placement in the non-approved school, the public school must pay the cost of private placement immediately….. it is ‘beyond cavil’ that an impartial hearing officer can order prospective tuition funding; to hold otherwise would be to deny a child the right to access to services under the IDEA”; Sabatini v. Corning-Painted Post Area School District, 78 F.Supp. 2d 138 (USDC, WDNY), a school district may be compelled to disburse funds for the student’s tuition at a private school and implement a hearing officer’s decision to place the student in anon-State-approved private school; Susquenita School District v. Raelee, 96 F.3d 78 (3d Cir., 1996) in which the court stated that the purpose of the IDEA is not advanced by requiring parents who have succeeded in obtaining a ruling that a proposed IEP is inadequate to front the funds for continued private education. “The burden that such an approach would place on many families is overwhelming. The cost of private education, especially in institutions specializing in teaching the learning disabled, is substantial. Families without means would be hard pressed to pay for private education…[t]he prospect of reimbursement at the end of the litigation turnpike is of little consolation to a parent who cannot pay the toll at the outset.” (Id. at 87). I conclude the parent is entitled to direct funding for [REDACTED] for 2022/23. I do not agree with the department’s representative that the [REDACTED] contract does not impose an obligation to pay if the parent is not awarded funding: it clearly states that “…Parents are financially responsible for the payment of Tuition in its entirety.” (Exh. G).

However, reimbursement must be limited to the amount paid for the secular part of [REDACTED]’s education. In Application of the Board of Education of the City School District of the City of New York, Appeal No. 96-14, the State Review Officer stated that tuition reimbursement to parents of a student who attends a school which offers religious instruction is not precluded by the First Amendment’s Establishment Clause. The decision relies on Zobrest v. Catalina Foothills School District, 113 S.Ct. 2462 (1993), which held that “Government programs that neutrally provide benefits to a broad class of citizens defined without reference to religion are not readily subject to an Establishment Clause challenge just because sectarian institutions may also receive an attenuated benefit.” The IDEA has the clear secular purpose of ensuring that all children with disabilities are offered a free appropriate public education, and that Burlington and Carter provide for the remedy of tuition reimbursement under IDEA; this remedy should be available to all parents who meet its criteria. “Tuition reimbursement does not involve the imprimatur of State approval upon the school selected by the parents, nor does it have as its primary effect the advancement of religion. Tuition reimbursement does not create a financial incentive for children to undertake religious education. It simply makes parents whole, by reimbursing them for expenditures which they would not have made, if their boards of education had offered their children the appropriate educational placements.” I find that [REDACTED]’s part-religious curriculum does not preclude an award of tuition reimbursement. The record indicates that about 9.5% of [REDACTED]’s school day was devoted to religious instruction; therefore 90.5% of the tuition shall be funded.

ORDER

IT IS THEREFORE ORDERED THAT: the department of education shall (i) fund 90.5% of [REDACTED]’s 2022/23 tuition at [REDACTED] in the amount of $88,690.00 (90.5% of $98,000.00 full tuition); and (ii) shall provide special education transportation.

Dated: February 23, 2023

Craig Tessler, Esq.

Craig Tessler, Esq.

Impartial Hearing Officer

PLEASE TAKE NOTICE

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

The Department of Education has designated the New York City Law Department to accept service of papers on its behalf, including appeals of decisions of Impartial Hearing Officers. Such service is made at 100 Church Street, New York, NY 10007 at the Messenger Center.