New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 585390 - NYC: 236929

FINDINGS OF FACT AND DECISION

Student’s Name: REDACTED

School District: N.Y.C. Dept. of Ed., District # Redacted

Impartial Hearing Officer: LORIANNE M WOLSELEY

Date of Filing: 09/09/2022

Hearing Requested by: Parent

Date of Hearing: 02/09/2023

03/03/2023 Record Close Date: 03/23/2023

Date of Decision: 03/23/2023

NAMES AND TITLES OF PERSONS WHO APPEARED

FEBRUARY 9, 2023

For the Student:

REDACTED., Attorney

For the Department of Education:

N/A

NAMES AND TITLES OF PERSONS WHO APPEARED

MARCH 3, 2023

For the Student:

REDACTED, Esq., Attorney

For the Department of Education:

REDACTED, District Representative

BACKGROUND

The Parent, through counsel, filed a Due Process Complaint (“DPC”) on or about September 9, 2022. In the Request, the Parent alleges that the Department of Education (“DOE”) failed to offer the student with a free appropriate public education (“FAPE”) for the 2022-2023 school year. [P- A.]

Parent alleges, among other things, that the IEP was substantively and procedurally deficient under federal and state law based on multiple procedural and substantive violations described with more particularity in the DPC, and that the DOE failed to properly develop an IEP that was appropriate for Student’s individualized needs. Parent also allege that the recommendations in the IEP were not appropriate. Furthermore, Parent alleges that the equities support their claim for tuition reimbursement for the school year at issue. [Id.] In light of the foregoing and as more fully discussed below, I find that: a) the DOE failed to meet its burden that it offered Student a FAPE for the 2022-2023 school year; b) Private School offers Student with specially designed instruction sufficient to meet Student’s needs; c) the equities support Parent’s requested relief for tuition reimbursement/direct funding; and d) Parent’s request for “a twelve-month ESY after-school program consisting of ten hours per week of individual 1:1 SETSS instruction” is denied.

PROCEDURAL HISTORY

I was appointed impartial hearing officer (“IHO”) for this case on November17, 2022. An initial prehearing conference was held on December 14, 2022. An Impartial Hearing was held on February 9, 2023 and March 3, 2023. The District failed to appear at the hearing on February 9, 2023.

After the hearing, but before the closing of the record, both the Parent’s attorney and the DOE were notified that the hearing record needed clarification and I had additional questions for the parties. The DOE and Parent’s attorney (along with Parent) appeared before me on March 3, 2023. Parent’s attorney was asked to explain the additional relief of “a twelve-month ESY after-school program consisting of ten hours per week of individual 1:1 SETSS instruction.” Parties were then asked to submit briefs on this issue. The compliance date for issuing a decision in this matter has been extended. A list of exhibits admitted into evidence is attached hereto. Although only portions of the evidence are referenced herein, all of the testimony and documents were reviewed in full.

FINDINGS OF FACT AND DECISION

After a full review of the record generated at hearing, I make the following findings of fact and determinations.

Student is a REDACTED-year-old student who is classified by the DOE’s Committee on Special Education (“CSE”) as a student with a learning disability. Student’s classification and entitlement to special education services are not in dispute. Student has been diagnosed with a Language Disorder, Social Pragmatic Communication Disorder, Attention-Deficit /Hyperactivity Disorder, Inattentive Presentation, Developmental Coordination Disorder and Specific Learning Disorder with impairments in reading (Dyslexia) and writing (Dysgraphia). [P- C 12 -14]

Given the complexity of the student’s diagnostic profile, Neuropsychologist recommended a placement in a small, structured and supportive classroom (maximum 8 to 10 students) that does not include students with behavioral issues. The neuropsychologist also recommended that the student receives 1:1 academic support in all areas to aid in the development of basic reading, writing, and math skills. The remedial 1:1 instructions should be provided in school and outside of school to compensate for deprivations of adequate special education services in the past school years and to prepare the student for increasing academic load in middle school. [P- C 15]

The most recent IEP review meeting was held on August 9, 2022. The resultant IEP classified the student as Learning Disabled and recommended a special education class with 12:1 staffing ratio with related services of OT 2x30 2:1; SLT 2x30 3:1; and 1:1 Paraprofessional in a NYC DOE Community School. [P- A]

Burden

School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement (NYS Educ. Law § 4404(1)(c)).

Prong I

The IDEA provides that children with disabilities are entitled to a Free Appropriate Public Education ("FAPE") (20 U.S.C. § 1400 (d)(1)(A). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”) (34 C.F.R. § 300.13). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017).

Since the DOE did not present a case, present any witness testimony, or place any documents in evidence in this proceeding, the DOE failed to address or sustain its burden under the Education Law and failed to demonstrate it provided the Student with a FAPE for the 2022-2023 school year. Accordingly, the Parent is entitled to a presumption as to the truth of the asserted facts underlying her claims that are contained in the documentary evidence and testimony to the extent they are credible and are not contradicted by the hearing record. Based on that presumption and the DOE’s failure to sustain its burden under the Education Law, the record establishes that the DOE failed to provide the Student with a FAPE for the 2022-2023 school year.

Prong II

A private school placement must be "proper under the Act." Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12, 15 (1993); Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 370 (1985). This means that the private school must offer an educational program which met the student's special education needs. See Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112, 115 (2d Cir. 2007); Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate." Gagliardo, 489 F.3d at 112)" Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement.'" Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006)

Parents need not show that the placement provides every special service necessary to maximize the student's potential. Frank G., 459 F.3d at 364-65. When determining whether a unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether the placement is "reasonably calculated to enable the child to receive educational benefits." Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115. A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student. 20 U.S.C. § 1401(29); Educ. Law § 4401(1); 34 CFR 300.39(a)(1); 8 NYCRR 200.1(ww); Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 (2d Cir. 2014).

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement. No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. 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. Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).

Parent testified by affidavit, and in person to clarify the record, as did Head of School at Private School. Student has attended Private School since September 13, 2021, for the 2021-2022 school year. Head of School testified about Private School’s program as well as about Student’s individual program and progress for the 2022-2023 school year. I find that the evidence and testimony at the hearing established that Private School provided Student with educational instruction specially designed to meet Student’s unique needs during the 2022-2023 school year.

Founded in REDACTED, Private School is REDACTED’s oldest private, independent, continuing, co-educational college preparatory day school, serving students from pre-kindergarten through the 12th grade. Private School admits students of average and above average intelligence who benefit from a unique school community environment of small classes and individual attention. Private School’s educational approach seeks to enhance its student’s strengths, as well as address their academic weaknesses. [P – D, M]

Private School is a small school and currently 175 students are enrolled. There is one class per grade (except for pre-kindergarten). Each classroom is led by a (head) teacher who works collaboratively with a Special Program at Private School teacher, certified school counselor, speech and language pathologist, and other professionals lowering the actual staffing ratio to approximately 2:1 and even 1:1. Most of the students are grouped according to their chronological age and corresponding grade level. Occasionally, a class may contain students who are identified according to level of functioning in one or more areas of instruction within the age range of approximately 12-18 months. [P – D, M]

Approximately 20% of Private School students present with learning disabilities, speech and language impairments, mild developmental delays and neurological disorders such as ADD or ADHD. One of the primary means through which Private School addresses students’ learning differences is Special Program at Private School – a fully integrated program providing students with necessary special education and related services within Private School’s mainstream environment. [P – D, M]

Special Program at Private School offers daily individual (1:1) or small group academic remediation where a student is paired with a learning specialist based upon their personal learning profile. These instructions are provided through a multi-sensory approach, within a structured learning environment in regular classes. In addition to daily academic remediation sessions, all of Special Program at Private School students receive daily small group tutorials, the purpose of which is to assist with homework assignments and preparing for next day classes. Special Program at Private School also provides related services of Speech and Language Therapy (“SLT”), School-Based Counseling, and Individual and Group Social Skills Training. Testing accommodations such as extended time or separate location and organizational and planning meetings are readily available as well. The main goal of Special Program at Private School is to equip disadvantaged students with the skills necessary to access general education curriculum along with their typically developing peers. [P – D, M]

Special Program at Private School teachers utilize a multi-sensory teaching approach in addressing the needs of the students with significant academic delays. They push-in and pull-out throughout the school day in order to provide students with individualized supports and multi-sensory instructional strategies. These include but are not limited to: clarification of written instructions, explicit modeling, use of graphic organizers, verbal prompting and redirection, sentence frames, step by step modeling, defining new vocabulary words and visuals, oral rehearsal and identification of significant text details by highlighting key information and providing differentiated worksheets. [P – D, M]

Student receives daily 1:1 and small group instruction with Special Program at Private School teachers, the related service of speech and language therapy four times per week, counseling and social skills training on a daily basis. Student’s classroom teachers work closely with the Special Program at Private School team and all strategies, modifications to Student’s program, and accommodations are incorporated at all times. [P – M]

There are nine students in Student’s class and 4 of the students (including Student) have IEPs and are enrolled in Special Program at Private School. Just like Student, his Special Program at Private School classmates require individualized teaching supports, supplemental related services and testing accommodations to access the modified middle school curriculum. Student is benefiting from his placement at Private School due to the fact that he is provided with a small classroom environment that meets his academic needs. [P – M]

I find that Student has progressed in Special Program at Private School. Student’s lowest score on the first trimester report card were in English and Mathematic. [P – J 1] The Student received a score of B- in these courses, indicated (by the inlayed Grade Equivalent Key) as 2 steps above “Average” and one step below meeting “Above Average”. [Id.] All Student’s scores in other classes exceeded this score including an A- in Creative Writing.

I find that Parent has met their burden in proving that the private program offered an educational program which met Student’s need under Prong II of the Burlington/Carter standard. [P – A, B, C, D, F, G, I, J, K, L, M, and N] The weight of the evidence establishes that Student’s individual special education needs were addressed by the private school and that the instruction offered was "reasonably calculated to enable the child to receive educational benefits." Frank G., 459 F.3d at 364. I note that the DOE offered no arguments concerning the appropriateness of Parent’s unilateral placement, nor challenging the equities in this action. I further note that the DOE did not cross-examine any of Parent’s witnesses, nor objected to any document accepted into the record. Under these circumstances, I find that the Parent’s witnesses are credible.

Equities

Even if a parent establishes a right to reimbursement under the IDEA, "courts retain discretion to reduce the amount of a reimbursement award if the equities so warrant." Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246-47, 129 S. Ct. 2484, 174 L. Ed. 2d 168 (2009) In making that equitable determination, a hearing officer may consider many factors, including, inter alia, whether a parent’s unilateral withdrawal of her child from the public school was justified, whether the parent provided the Department with adequate notice of the withdrawal, whether the amount of private-school tuition was reasonable, whether the parent should have availed herself of need-based scholarships or other financial aid from the private school, and whether there was any fraud or collusion in generating (or inflating) the tuition to be charged to the Department, or whether the arrangement with the school was fraudulent or collusive in any other respect. E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014).

Here, Parent provided the necessary Ten-Days’ Notice of their concerns with the DOE’s offer of FAPE for the Student for the 2022-2023 school year. Therein, Parent detailed specific concerns. [P- B.] Parent furthermore, gave the DOE notice of their intention to unilaterally place the Student at the Private School. [Id.] No evidence was submitted at hearing describing the DOE’s response to the Ten-Day Letter.

By way of relief, Parent seeks reimbursement for their private school tuition costs and to have the balance of unpaid tuition sent directly to the Private School. Direct tuition funding is relief encompassed by the equitable remedial powers inherent in IDEA. See e.g. Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 406 (S.D.N.Y. 2011)(parents may seek direct funding in the instance in which, “due to a lack of financial resources, [parents of a student with a disability] have not made tuition payments but are legally obligated to do so”) Having reviewed P- O, I find that the unilateral tuition costs far exceed the Parent’ income. [P- E, O]. Equity demands that the DOE fund Student’s Private School tuition in this instance.

I find no issue with the reasonableness of the costs, including tuition, associated with the Private School. [See P- D, E, F, G, H, I , J, N]. Student attended the Private School during the year at issue. See id. Moreover, I find that the weight of the evidence establishes that Parent cooperated with the DOE and its CSE’s efforts to develop an IEP and recommend a program and placement for the 2022-2023 school year. [See P- N.] Overall, I find that the equities support Parent’s claim for tuition reimbursement and direct funding.

Additional Relief Requested

In addition to an award for tuition reimbursement/direct funding, Parent seeks an award of “a twelve-month ESY after-school program consisting of ten (10) hours per week of individual 1:1 SETSS instruction to receive FAPE in the Least Restrictive Environment for the 2022-2023 school year.”

In the DPC, Parent makes two assertions that warrant separate review:

A. Parent states that, “the remedial 1:1 instructions should be provided… to compensate for deprivations of adequate special education services in the past school years and to prepare the student for increasing academic load in middle school.” [P- A 2]

B. Parent also states that, “the student requires a twelve-month ESY after-school program consisting of ten (10) hours per week of individual 1:1 SETSS instruction to receive FAPE in the Least Restrictive Environment for the 2022-2023 school year.” [P A 4]

1. Extended School Year

Students shall be considered for 12-month special services and or programs in accordance with their need to prevent substantial regression, if they are (8 NYCRR §200.6(k)(1)): (i) students whose management needs are determined to be highly intensive and require a high degree of individualized attention and intervention who are placed in classes in accordance with subparagraph (h)(4)(ii) of this section; (ii) students with severe multiple disabilities, whose programs consist primarily of habilitation and treatment and are placed in special classes in accordance with subparagraph (h)(4)(iii) of this section; (iii) students who are recommended for home and hospital instruction whose special education needs are determined to be highly intensive and require a high degree of individualized attention and intervention or who have severe multiple disabilities and require primarily habilitation and treatment; (iv) students whose needs are so severe that they can be met only in a seven-day residential program; or (v) students who are not in programs as described in subparagraphs (i) through (iv) of this paragraph during the period from September through June and who, because of their disabilities, exhibit the need for a 12-month special service and/or program provided in a structured learning environment of up to 12 months duration in order to prevent substantial regression as determined by the committee on special education. (8 NYCRR §200.6(k)(1)).

Typically, extended school year (“ESY”) services are provided during the summer months. However, ESY services may be provided during times other than the summer, such as before and after regular school hours or during school vacations, if the CSE determines that the child requires ESY services during those time periods in order to receive FAPE.

Based on the Parent’s detailed reports and the testimony on Record, I do not find an ESY award appropriate. I find that no credible persuasive evidence was presented to establish that Student would substantially regress. Although it is very likely that Student would generally benefit from 1:1 SETSS instruction, this benefit cannot be said to be necessary for the DOE to provide Student with the educational benefits required under the holdings of Rowley and Endrew F. “[T]he IDEA ensures the provision of ‘an appropriate’ education, ‘not one that provides everything that might be thought desirable by loving parents.’” (State Appeal No. 22-095 quoting Walczak, 142 F.3d at 132).

Additionally, Student has several deficits, it is not expected that he could easily be brought to an age-appropriate level and that is not the standard for an appropriate program. Student is currently making good progress given his circumstances, and I believe that meets the requirements of law.

2. Compensatory Education

It is widely held that "[c]ompensatory education involves discretionary, prospective, injunctive relief crafted by a court [and/or hearing officer] to remedy what might be termed an educational deficit created by an educational agency's failure over a given period of time to provide a FAPE to a student" (Reid ex rel. Reid v. Dist. of Columbia, 401 F.3d 516, 522, 523, 525 (D.C. Cir. 2005) citing G. ex rel. RG v. Fort Bragg Dependent Schs., 343 F.3d 295, 309, 40 IDELR 4 (4th Cir. 2003).

Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case. See Wenger v. Canastota, 979 F. Supp. 147, 151 (N.D.N.Y. 1997). An award of compensatory education is a fact-specific inquiry, and compensatory education services should aim to place the student in the position he would have been in had the district complied with its obligations. See P. v. Newington, 546 F.3d 111, 123 (2d Cir. 2008).

Compensatory education is not to be wielded as a punitive sword to punish a school district, but merely to serve the purpose of putting the student in the position he would have been in had the District provided him with a FAPE. See Polera v. Bd. of Educ., 288 F.3d 478, 486 (2d Cir. 2002) ("The purpose of the IDEA is to provide educational services, not compensation for personal injury, and a damages remedy— as contrasted with reimbursement of expenses—is fundamentally inconsistent with this goal.").

Here, Parent’s claim exclusively seeks remedy and redress for the 2022-2023 school year. [see PA;] In the DPC, Parent acknowledged that a previous FAPE violation for a different school year was resolved by a settlement agreement with the DOE. [see P- A 2] However, despite this disclosure, Parent also states that “the remedial 1:1 instructions should be provided… to compensate for deprivations of adequate special education services in the past school years and to prepare the student for increasing academic load in middle school.” To incorporate educational deficits from previous school years not sought within the Due Process Complaint (“DPC”) would thus be outside the scope of the claim raised. Such incorporated relief for years outside of the scope of the DPC would subvert res judicata concepts in which claims may have already been brought and redress awarded.

Here, I do not find a compensatory award appropriate.

Other Requested Relief

I find that the Parent’s 504 claims are subsumed within the framework of the IDEA. Parent’s attorney did not identify any specific regulatory requirement under 504 that is not subsumed under IDEA and that would merit separate analysis and discussion. Therefore, I will not separately analyze the 504 claims raised in the complaint.

I have reviewed the Parties’ remaining contentions and find them to be either unnecessary to this decision, without merit, beyond my jurisdiction, or without sufficient basis in the record for a finding and award of relief. Accordingly, any relief not specifically discussed in this decision is denied, and all the Parent’s remaining claims not discussed herein are dismissed with prejudice.

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY

ORDERED THAT:

ORDERED, the DOE failed to provide Student a FAPE for the 2022-2023 school year, ORDERED, the DOE shall reimburse Parent in the amount of $4,500.00 for the tuition already paid to Private School, ORDERED, the DOE shall directly fund the balance of Student’s tuition at the Private School, not to exceed the amount of $50,116.68 for the 2022-2023 school year.

Dated: 03/23/2023

Lorianne M Wolseley.

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.

DISTRICT EVIDENCE

PARENT EVIDENCE

NO. DATE NAME OF DOCUMENT # pp.

A. Impartial Hearing Request 09/08/22 6 pages

B. Ten Day Notice 08/23/22 3 pages

C. Neuropsychological Evaluation 05/27/22 22 pages

D. REDACTED Program Description UNDATED 8 pages

E. Enrollment Contract 09/12/22 4 pages

F. REDACTED Class Schedule 2022-2023 1 page

G. REDACTED Attendance Report 01/31/23 1 page

H. REDACTED Tuition Affidavit 12/06/22 1 page

I. REDACTED Mid-Year Progress Report January 2023 5 pages

J. REDACTED Report Card January 2023 4 pages

K. Academic Evaluation by REDACTED, MS, SBL-SDL, CM/AOGPE, NBPTS 01/16/23 14 pages

L. Affidavit of REDACTED, MS, SBL-SDL, CM/AOGPE, NBPTS 02/02/23 2 pages

M. Affidavit of REDACTED, M.Ed. 02/02/23 12 pages

N. Affidavit of REDACTED 02/02/23 3 pages

O. 1040 Parent’s Income Tax 04/12/22 2 pages

IHO EXHIBITS

I. DOE BRIEF on ESY 3/17/2023 5 pages IHO

II. PARENT’S BRIEF on ESY 3/17/2023 15 pages IHO