New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 579489 - NYC: 231496

FINDINGS OF FACT

Case Number: 231496

NYS Case Identifier Number: 579489

Student’s Name: [REDACTED] [REDACTED]

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested By: Parent

Dates of Hearing: September 19 and December 15, 2022

Record Closed Date: January 3, 2023

Hearing Officer: Craig Tessler

APPEARANCES:

September 19, 2022

Parent:

[REDACTED] [REDACTED], Esq.

Department of Education:

None

December 15, 2022

Parent:

[REDACTED] [REDACTED], Esq.

[REDACTED] [REDACTED], Parent

[REDACTED] [REDACTED], Associate Director, [[REDACTED]

Department of Education:

[REDACTED] [REDACTED], Esq.

EXHIBITS:

PARENT:

DATE DOCUMENT PAGES

• • September 5, 2022 Demand for Due Process 3
• • August 23, 2022
• • August 17, 2022 Letter from Parent to CSE 2
• • (with fax confirmation)
• • (Undated) [REDACTED] Program Description 1
• • [REDACTED] Schools
• • 2022-2023 Student’s Daily Schedule 1
• • 2022-2023 Comprehensive Student Plan 17
• • January 26, 2022 [REDACTED] 2022-2023 Tuition Contract 1
• • October 7, 2022 Tuition Affirmation 1
• • October 12, 2021 2020 Form 1040 3
• • December 13, 2022 [REDACTED] Affirmation 15
• • (undated) Parent Affirmation 3 Department of Education: None I. 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] ("[REDACTED]"); the hearing was held on September 19 and December 15, 2022. 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, and on December 15, 2022 to allow for receipt of the transcript. Before granting the extension requests, I determined that the extensions 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.

II. Background

[REDACTED] is an [REDACTED] year old student classified with a learning disability, and diagnosed with [REDACTED]; he attends the [[REDACTED] school, a non-public, non-approved program. On August 17, 2022, [REDACTED]’s parent notified the CSE that she had not received an IEP or placement recommendation for 2022-23, and that she intended to place [REDACTED] in [[REDACTED] and seek department of education funding for tuition. (Exh. C). [REDACTED], Esq., attorney for [REDACTED]’s parent, requested the hearing on September 5, 2022 (Exh. A), alleging that the department of education failed to offer [REDACTED] FAPE for 2022/23; the parent seeks department of education funding for [REDACTED]’s 2022/23 tuition at [REDACTED].

On September 19, 2022, I granted the parent’s request for an order determining that [[REDACTED] is [REDACTED]’s ‘pendency’ program, pending resolution of this matter, based upon the decision of a prior impartial hearing officer which found that the department of education failed to provide FAPE to [REDACTED] for 2020/21, and ordered the department to fund 88.36% of [REDACTED]’s [REDACTED] tuition.

III. The CSE’s Case The department of education did not present any witnesses or submit any documents into evidence. (T. 13-14).

IV. The Parent’s Case The parent submitted the Affirmation in Lieu of Testimony of [REDACTED] [REDACTED] (Exh. J), Associate Director of [[REDACTED] since September, 2020, who has a M.A. and New York State certification in special education, general education, and reading, and experience as a teacher, SEIT provider, reading specialist and educational director; her duties include supervision, training, curriculum development, liaison to the program’s ‘host’ school, and participation in annual review meetings. [REDACTED] operates special education programs in mainstream partner (host) schools; there are four elementary school programs, and four high school programs. [[REDACTED] is a small elementary/middle school program which provides highly individualized programming and specialized therapeutic services to meet the needs of each student. (Exh. D). During 2022-2023, there are 33 [[REDACTED] students in grades one through eight. Classes have six to eight students, with two to three Masters level teachers. The entire class works together on community building and social skills. Academic subjects ate taught in small groups or 1:1, depending individual needs. The program uses a multisensory approach. The program develops an individualized Comprehensive Student Plan for each student, including goals and academic and social inclusion opportunities. There are three written goal/progress reports issued during the year,, in November, February and June; the reports are shared with parents, and the February and June assessments include narrative comments in addition to numerical ratings. Progress is measured by informal assessment, class work and homework, and quizzes. In addition, some of the sequential academic programming provides for testing of skills at the conclusion of each segment to determine readiness to move on.

[REDACTED] has ADHD and dyslexia, and struggles with reading. He entered [[REDACTED] in September 2020, and presented with a number of social-emotional challenges such as anxiety, low frustration tolerance, aggression, and impaired social communication skills and classroom behavior skills; he has made progress, but these issues remain. [[REDACTED] is appropriate for [REDACTED] because it offers small class size with considerable support, related services, and mainstreaming opportunities; he was placed in a class with peers with similar skills and needs. Ms. [REDACTED] helped develop [REDACTED]’s individual program and schedule for 2022-2023, along with his teachers and related service providers. (Exhs. E, F). Ms. [REDACTED] oversees [REDACTED]’s program and progress, observes him in the classroom, and confers frequently with [REDACTED]’s teachers and therapists. There are weekly team meetings of the classroom team, to monitor program and progress of students’ academic, language/communication, social, and emotional needs, and make any necessary modifications. [REDACTED] is in a class of six students, ranging from 4th through 6th grades; they all present with language-based learning difficulties, and have similar academic and social-emotional needs. There are two Master’s level teachers, which allows for 1:1 support and small group instruction.

[REDACTED]’s class schedule was developed based on his academic and social-emotional needs, and includes appropriate related services and mainstreaming opportunities. The class day begins with a period of Judaic Studies, followed by Morning Meeting, which teaches social behavior, including sharing information, asking relevant questions, and appropriately agreeing or disagreeing. Morning Meeting provides a structured opportunity for [REDACTED] to work on sustaining attention and participating appropriately in a group activity. [REDACTED] has math class four times per week, in a 4:1 group, with a teacher certified in special education. The class uses a 4th grade research-based mathematics curriculum intended for students with elementary school level skills. Instruction is sequential and multisensory, and [REDACTED] has progressed in Math. [REDACTED] has phonics four times per week 2:1; the teacher is certified in special education. The class uses the PAF (Preventing Academic Failure) Reading program, a multisensory instructional program for reading, writing, and spelling, which uses Orton-Gillingham instructional methods that are appropriate to for students with dyslexia, such as [REDACTED]. [REDACTED] has progressed, with hard work and intensive teacher support. [REDACTED] has multiple periods per week of reading comprehension 3:1 with the same teacher. [REDACTED] requires a great deal of teacher support in reading comprehension, but has made slow steady progress. During his weekly library class, [REDACTED] goes with his cohort class to the school library, where he can check out books to read at home and during free time. In addition, [REDACTED] has a weekly library class, which also teaches basic computer skills. [REDACTED] has Hebrew Handwriting class three time per week 6:1, taught by a Rabbi. [REDACTED] has Social Studies or Science twice per week, and an additional weekly Social Studies class. These classes are 6:1, with opportunity for individualization. [REDACTED]’s difficulties with attention and reading impact on his work in Science and Social Studies but with a lot of support and working step-by-step, he has made some progress. [REDACTED]’s teachers developed goals for [REDACTED]’s classroom and school behavior. [REDACTED] is working on complying with school and class rules, using his words to express frustration or worry, initiating asking for a break when he feels overwhelmed, and conveying his readiness for work or a conversation. [REDACTED] receives scheduled counseling, and can see a counselor as-needed. [REDACTED] receives related services: Adaptive Physical Education once per week; Art Therapy Group once per week; Counseling once per week; speech-language therapy twice per week 1:1 and once per week in a group; a combined speech-language/OT group once per week; OT once per week in a group; and a Social Skills and Language Therapy Group taught to the whole class once per week. [REDACTED] also participates in a inclusion class for STEM (Science Technology Engineering Math) once per week; there are four [[REDACTED] students, and twenty-seven general education students in the class, which focuses on a basic introduction to engineering skills. The class is very hands-on and project based and presented in a relaxed format, and [REDACTED] finds the class fun. [REDACTED] has another opportunity for inclusion with general education peers during a weekly Judaic Studies period. [REDACTED] enjoys being with general education peers, and learns from social and language models. [REDACTED] also shares recess and lunch periods with his peers from [[REDACTED] and general education peers. During these times, [[REDACTED] staff are available for social facilitation and conflict resolution, if needed. The school day closes with a Closing Circle period when the class reviews homework assignments, organizes and readies their belongings for dismissal, and exchange salutations prior to heading home; this provides an opportunity to practice appropriate social skills and reciprocal conversation skills, with adult support.

During 2022-2023, [[REDACTED] has been open for in-person instruction, but can accommodate remote instruction should the whole [[REDACTED] student body or an individual class(es) need to quarantine. [REDACTED]’s program has a religious component, and his overall schedule is 75.84% non-sectarian, calculated by dividing the total weekly hours of non-sectarian instruction (27.68) by the total weekly number of school hours (36.50).

[REDACTED]’s parents are involved with [REDACTED]’s education and do whatever they can to support [REDACTED]’s learning. They participate in parent training and work with [REDACTED] at home and in the community.

Ms. [REDACTED] opined that [[REDACTED] is an appropriate educational setting for [REDACTED] for the 2022-2023 school year, because it provides small classes, opportunities for small group instruction, and has developed an appropriate program based on [REDACTED]’s individual needs.

The Parent’s Affirmation (Exh. K) states that [REDACTED] has dyslexia and ADHD, and struggles with anxiety, focus, behavioral concerns, and social skills. [REDACTED] entered [[REDACTED] in September, 2020, and successfully completed the 2020-2021 and 2021-2022 school years there. On January 26, 2022, the parents signed the [[REDACTED] tuition contract (Exh. G), which provided that the parent could withdraw from the contract if the department offered an appropriate program and placement prior to October 17, 2022. Tuition is $114,000; as of October 7, 2022, the parents paid $9,200. (Exh. H). The parents will remain responsible for [REDACTED]’s [[REDACTED] 2022-2023 tuition, regardless of the outcome of the hearing, and would enter into a payment plan for tuition if they did not prevail. On August 17, 2022, Ms. [REDACTED] notified the CSE that she had not received an IEP or school placement for [REDACTED] for 2022-23, that she was interested in considering any option the department might recommend for [REDACTED], that subject to any such recommendation [REDACTED] would continue to attend [[REDACTED] during 2022-2023, and that she reserved the right to seek department funding for [REDACTED]’s [REDACTED] program. (Exh. C). The parent has still not received any program or placement recommendation for [REDACTED] from the department. She has had no contact from the CSE since an IEP meeting in 2020, although she has tried to contact them by telephone several times, and her telephone number and address have not changed. (T. 39). [REDACTED] is attending [[REDACTED] during 2022-23. Ms. [REDACTED] states that [[REDACTED] is an appropriate program for [REDACTED], and he has made academic and social-emotional progress. [[REDACTED] staff provides the parents with support so they can work on skills with [REDACTED] outside of school, and are always available to answer questions. The family consists of the parents, [REDACTED], and two other children; their 2020 Form 1040 indicates an adjusted gross income of [REDACTED]. (Exh. P).

V. 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 "[REDACTED]imize" 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, individual attention, and related services, with social skills included in the curriculum and opportunities for exposure to mainstream peers; the program effectively addresses [REDACTED]’s academic and social/emotional issues. The curriculum is individualized to each student, and provided the intensive modifications, supports and strategies which [REDACTED] requires. The program staff includes certified/licensed teachers and related service providers. The staff regularly monitors students’ progress and modifies their programs to suit their developing needs. The record indicates that [REDACTED] made progress at [[REDACTED]. [REDACTED]’s [[REDACTED] program was reasonably calculated to ensure that [REDACTED] benefited educationally and made academic and social progress, and provided 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.

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 25% of [REDACTED]’s school day was devoted to religious instruction; therefore 75% of the tuition shall be funded.

VI. Order

IT IS THEREFORE ORDERED THAT: the department of education shall fund 75% of [REDACTED]’s 2022-23 tuition at [[REDACTED] in the amount of $85,500.00 (75% of $114,000.00 full tuition).

Dated: January 17, 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.