New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 000000 - NYC: 000000

CASE NUMBER: 235939

FINDINGS OF FACT AND DECISION

Case Number: 235939

Student’s Name: REDACTED REDACTED

School District: New York City Department of Education Hearing Requested by: Parent Request Date/Date Complaint Filed: September 8, 2022

Date(s) of Hearing: November 3, 2022

March 23, 2023

December 22, 2022

January 20, 2023

February 16, 2023

March 23, 2023

April 11, 2023

May 8, 2023

Actual Record Closed Date: May 18, 2023

Date of Decision: June 1, 2023

Date of Distribution if Different than Decision Date: N/A Hearing Officer: Jean Marie Brescia, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

November 3, 2022

For the Student:

REDACTED REDACTED, Esq.

For the Department of Education:

None

NAMES AND TITLES OF PERSONS WHO APPEARED

November 21, 2022

For the Student:

REDACTED REDACTED, Esq.

For the Department of Education:

None

NAMES AND TITLES OF PERSONS WHO APPEARED

December 22, 2022

For the Student:

REDACTED REDACTED, Esq.

For the Department of Education:

REDACTED REDACTED, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

January 20, 2023

For the Student:

REDACTED REDACTED, Esq.

For the Department of Education:

REDACTED REDACTED, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

February 16, 2023

For the Student:

REDACTED, Esq.

For the Department of Education:

REDACTED REDACTED, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

March 23, 2023

For the Student:

REDACTED REDACTED, Esq.

For the Department of Education:

REDACTED REDACTED, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

April 11, 2023

For the Student:

REDACTED REDACTED, Esq.

For the Department of Education:

None

NAMES AND TITLES OF PERSONS WHO APPEARED

May 8, 2023

For the Student:

REDACTED REDACTED, Esq.

REDACTED REDACTED Kissam, Parent Student

REDACTED REDACTED, Principal of REDACTED School

For the Department of Education:

REDACTED REDACTED, Esq.

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 8, 2022. Ex. A. 1 On October 25, 2022, I was appointed by the New York City Department of Education to hear this matter. Parent seeks reimbursement for tuition for REDACTED’s placement at The REDACTED School (“REDACTED”) and transportation for the 2022-2023 school year. Ex. A.

I conducted a prehearing conference on November 3, 2022. Counsel for REDACTED’s parent appeared; no one appeared on behalf of the Department. Counsel clarified the relief sought and requested a pendency hearing. I scheduled a pendency hearing for November 21. On November 21, counsel for REDACTED’s parent appeared; no one appeared on behalf of the Department. Parent’s Exhibits A and B were admitted in evidence, a pendency hearing was conducted, and an Order on Pendency was issued.

On December 22, Counsel for REDACTED’s parent and for the Department appeared. Counsel for the Department reported that the Department was investigating this matter for settlement. Tr. 18-19. The hearing was rescheduled to January 20, 2023.

On January 20, opening statement were presented and the hearing continued to February 16, when the parties sought a continuance to continue to try to resolve this matter through settlement. Tr. 38. The hearing reconvened on March 23, Parent’s Exhibits C through G and Department’s Exhibits^[1] through 3 were admitted in evidence. The Department rested its case without presenting the testimony of witnesses. Tr. 52.

On April 11, counsel for REDACTED’s parent appeared; no one appeared on behalf of the Department; the hearing was continued to and completed on May 8. REDACTED’s mother and the principal of REDACTED School testified, Parent’s Exhibits H through L were admitted in evidence, and Parent’s counsel presented a closing statement.

The record was closed on May 18, 2023, upon the admission of the Hearing Officer’s receipt and review of the transcript of the last day of the hearing.

The parties requested extensions of the compliance date, and written Orders of Extension were issued on November 11 and December 22, 2022, and January 20, February 16, March 23, April 11 and May 8, 2023. The reasons for granting the extensions are set forth in the Orders.

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 New York State Education Law § 4404 et seq., and its implementing regulations, 8 N.Y.C.R.R. Part 200 et seq.

Parents consented to the hearing being conducted via videoconference and to the electronic transmission of this Findings of Fact and Decision.

ISSUES

Parents request reimbursement for tuition they paid to REDACTED for REDACTED’s enrollment at REDACTED for the 2022-2023 school year. 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:

1. Was REDACTED an appropriate placement for REDACTED for the 2022-2023 school year?

2. Does the balance of the equities favor REDACTED’s parent?

FINDINGS OF FACT

1. REDACTED is an REDACTED-year-old girl who is eligible for special education and services under the IDEA and whose disability, for the purposes of the IDEA, is classified as other health impairment. Ex. 2 at 1.

2. REDACTED has been diagnosed with REDACTED, a REDACTED, and REDACTED, and she experiences challenges with academics, attention and focusing, executive functioning, organizational skills, and frustration. Tr. 85-86; Ex. L at ⁋⁋ 2, 4, 6, Ex. L at ⁋

14.

3. REDACTED attended a general education preschool and transitioned to a general education kindergarten and first grade program. Ex. L at ⁋ 5.

4. By the end of first grade, her learning challenges were evident, she was “struggling significantly” in reading, was unable to decode, and demonstrating emotional and behavioral issues in the classroom. Ex. L at ⁋ 5.

5. REDACTED was evaluated to determine her eligibility for special education and services at some point during 2021, prior to a November 23, 2021 IEP meeting. Tr. 97-98.

6. REDACTED enrolled in REDACTED in September 2021. Tr. 97.

7. REDACTED is a special education school for children in grades 2 through 6 with learning disorders. Ex. K at ⁋ 7.

8. On November 23, 2021, REDACTED’s mother attended an IEP meeting. The CSE recommended that REDACTED receive occupational therapy in a community school.

There were no other special education or related services recommended for her. Ex. L at ⁋⁋ 7-8.

9. After the IEP meeting, the Department asked REDACTED’s mother to consent to evaluations of REDACTED; the Department’s forms stated that REDACTED’s mother had requested these evaluations (which she had not); REDACTED’s mother consented to these evaluations. Ex. L at ⁋ 9; Ex. C. These evaluations were conducted. Ex. C.

10. On August 24, 2022, REDACTED’s mother forwarded a “ten-day” notice letter to the Department. Ex. C. REDACTED’s mother informed the Department of her concerns about the Department’s IEP for REDACTED, including (among other things) that the CSE recommended only occupational therapy for REDACTED, stated that REDACTED would attend REDACTED, and notified the Department that she would be seeking reimbursement for REDACTED’s tuition at REDACTED for the 2022-2023 school year. Ex. C.

11. REDACTED continued at REDACTED for the 2022-2023 school year. Ex. E; Ex. L at ⁋ 14.

12. According to REDACTED’s principal, REDACTED’s program is based on the principles underlying Orton-Gillingham instruction and applies “those principles as they relate to all academic instruction.” The principal described Orton-Gillingham as “a research-based multisensory and sequential instructional method for both reading and math.” At REDACTED, Orton-Gillingham multisensory and sequential principles are also used to teach science and social studies. Ex. K at ⁋⁋ 10-12.

13. REDACTED’s schedule includes “Remediation,” Small Group ELA, math, science, social studies, gym, STEM, “Social & Emotional,” speech and language, group project time, and

“Clubs.” Ex. G. 14. REDACTED’s classes include ten students with one teacher; her math class includes two teachers. Tr. 84. ELA is taught in a class of five students, with additional remediation provided 1:1 or 1:2. Tr. 84. 15. REDACTED provides its students 1:1 or 1:2 reading remediation using Orton-Gillingham and delivered during 90-minutes of ELA, four times per week. Tr. 83. Students spend half the reading session in the 1:1/1:2 remediation and the other half of the session in small group instruction. Tr. 83. 16. REDACTED’s reading remediation is multisensory and “very targeted and tailored” to her specific needs. Tr. 83; Ex. K at ⁋⁋ 11, 15. It is provided by an Orton-Gillingham trained specialist who is a New York State certified general and special education teacher. The remediation focuses on decoding, encoding, comprehension and writing skills. Ex. K at ⁋ 16. 17. Multisensory instruction in the 1:1 and small group settings allows REDACTED to improve her ability to focus, reduce her frustration and anxiety, and remain engaged in learning tasks. Ex. K at ⁋ 19. 18. During the social-emotional class, the school counselor works with REDACTED’s class during a weekly social emotional group session. Tr. 88; Ex. K at ⁋⁋ 16, 18. During this weekly session, REDACTED works on strategies to address her distractibility, executive functioning deficits, impulsivity, anxiety, and to reduce “her tendency to go off on tangents when conversing with her classmates or adults.” Ex. K at ⁋ 18. 19. In addition, REDACTED can access the guidance counselor when she feels that she needs to do so, particularly when she is experiencing frustration. Tr. 88-89. 20. REDACTED addresses REDACTED’s executive functioning and organizational challenges during the remediation sessions, techniques taught during writing (such as use of graphic organizers), and strategies taught by the school counselor. Tr. 85-86. 21. REDACTED’s OT deficits are addressed during typing instruction and in handwriting instruction provided during Orton-Gillingham sessions. Tr. 95. 22. As a whole, REDACTED’s program at REDACTED utilizes “evidence based methodologies developed to address her specific learning disabilities in reading, writing and math, language-based learning disorders, attention deficit hyperactivity disorder, executive functioning deficits” and “address her social/emotional growth and social pragmatic skills.” Ex. K at ⁋ 15. 23. REDACTED made progress at REDACTED during the 2022-2023 school year (Tr. 94-95; Exs. F, H; Ex. K at ⁋⁋ 20-26; Ex. L at ⁋⁋ 15-18): a. In reading, REDACTED’s reading scores in on the Woodcock Reading Mastery Test improved from February 2022 and February 2023: word identification (1.4 to 2.1 grade equivalent), word attack (2.5 to 4.2 grade equivalent), and comprehension (2.4 to 3.7 grade equivalent); passage comprehension remained a challenge due to her attention and focusing challenges. b. In writing, REDACTED has begun to implement organization strategies and has learned to write sentences that convey her thoughts. c. In math, REDACTED has moved from a first grade level to a third grade level in math operations and problem solving. d. REDACTED demonstrates reduced impulsivity and anxiety, increased ability to respond to her teachers, increased periods of sustained attention, and can recognize when she needs help. 24. REDACTED’s parent entered into an enrollment contract with REDACTED for the 2022-2023 school year. The contract obligates REDACTED’s mother to pay the entirety of the tuition amount of $75,000.00. Ex. D. 25. REDACTED’s parent has paid $44,000.00 towards the 2022-2023 school year tuition. Exs.

I, J.

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). 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., Application of a Child with a Disability, Appeal No. 07-008; Application of a Child with a Disability, Appeal No. 06-121.

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 selected by the parents is 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). 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. 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. v. New York City Dep’t of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012). 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). The school district must then implement the IEP. 8 N.Y.C.R.R. 200.4(e)(1), (3).

In New York, the school district bears the burden of proof in an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. 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 other evidence with respect to its provision of FAPE to REDACTED for the 2022-2023 school year. Since the Department did not offer any testimony or other evidence to demonstrate that a program it had developed for REDACTED for the 2022-2023 school year was “reasonably calculated” to permit her to make progress given her unique circumstances, the Department did not carry its burden of proof and cannot prevail on the first “prong” of the Burlington/Carter test. Was REDACTED an appropriate placement for REDACTED for the 2022-202 school year?

REDACTED’ parent bears the burden of proof concerning the appropriateness of REDACTED for REDACTED. See, e.g., Frank G. v. Board of Education of the Hyde Park Central Sch. Dist., 459 F. 3d 356, 364 (2d Cir. 2006), cert. denied, 128 S.Ct. 169 (2007). To meet this burden, REDACTED’s mother must show that the educational services provided at 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) (SumREDACTED 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 provides REDACTED with an educational environment in which her specific and identified special education needs are addressed. In particular, REDACTED addresses REDACTED’s need for small classes and individualized multisensory, intensive remediation and instruction as well as teacher supports and the support of the school counselor. REDACTED needs these levels and types of instruction, remediation, and teacher and counselor supports in order to address her language-based, executive functioning, anxiety-based, and attentional challenges so she can learn. The record is clear as to the extent of the individualized special education and other supports that REDACTED personnel provided to REDACTED. See paragraphs 12 through 22, above. REDACTED is making progress at REDACTED during the 2022-2023 school year. See paragraph 23, 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 the program at REDACTED is appropriate for REDACTED for the 2022-2023 school year. As a result, REDACTED’s parent prevails with respect to the second Burlington/Carter criterion. Does the balance of the equities favor REDACTED’ parents?

With respect to the third Burlington criterion, whether equitable considerations support REDACTED’s parent’s claims, the evidence establishes that REDACTED’ parent cooperated with the CSE by attending CSE meetings, communicating with Department personnel about her 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). “Important to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA.” C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 840 (2d Cir. 2014).

Equitable considerations thus favor the award of relief to REDACTED’s parent. As a result, REDACTED’s parent prevails with respect to the third Burlington/Carter criterion.

ORDER

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

The Department of Education shall fund REDACTED’s placement at the REDACTED School for 2022-2023 school year, in an amount not to exceed $75,000.00. Funding shall be reimbursement to REDACTED’s parent for the amounts paid to REDACTED for the 2022-2023 school year tuition, and payment directly to REDACTED for any unpaid amounts for the 2022-2023 school year tuition.

SO ORDERED.

DATED: June 1, 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

DEPARTMENT OF EDUCATION EXHIBITS

1. Authorization to Attend 11/23/21 3 pages DOE

2. IEP 11/23/21 11 pages DOE

3. Prior Written Notice 12/9/21 13 pages DOE

PARENT’S EXHIBITS

A. Letter Date Name of Document # of Due Process Complaint 9/8/2022 3 pages

B. FOFD 8/26/2022 13 pages

C. Parent Letter with Confirmation Receipt 8/24/2022 2 pages

D. 2022-2023 REDACTED School Enrollment Contract 6/1/2022 1 page

E. Attendance Record 2022-2023 1 page

F. November 2022 Report Card November 2022 11 pages

G. Class Schedule 2022-2023 1 page

H. March 2023 Report Card March 2023 10 pages

I. 1/25/20023 Affidavit of Payment 1 page

J. Dates Proof of Payments Various 6 pages

K. Testimony via Affidavit - REDACTED REDACTED 5/4/2023 8 pages

L. Testimony via Affidavit – REDACTED REDACTED 5/5/2023 5 pages

Footnotes

[1] Exhibits shall be referred to as follows: Parent’s exhibits are identified with letters; Department exhibits are identified with numbers; and Impartial Hearing Officer’s Exhibits are labelled as “IHO.”