NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
CASE NUMBER: 587470 – NYC: 238755
FINDINGS OF FACT AND DECISION
Student’s Name: [REDACTED]
School District: N.Y.C. Dept. of Ed., District # Manhattan
Impartial Hearing Officer: Roberta Wolf
Date of Filing: 09/20/2022
Hearing Requested by: Parent
Date of Hearing: 02/10/2023
Record Close Date: 03/04/2023
Date of Decision: 03/04/2023
NAMES AND TITLES OF PERSONS WHO APPEARED
FEBRUARY 10, 2023:
For the Department of Education:
[REDACTED], Representative
[REDACTED], Psychologist
For the Student:
[REDACTED], Representative
[REDACTED], Parent Student
[REDACTED], Program Director at the Private School
BACKGROUND
On September 20, 2022, the Parent, by and through her attorney’s law firm, filed a due process complaint (DPC) against DOE on behalf of the Student, under Case No. 238755, pursuant to the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. § 1415(f)) and Section 4404(1) of the New York State Education Law (Education Law). 1 In the DPC, the Parent asserts that DOE failed to provide the Student with a free appropriate public education (FAPE) for the 2022-2023 school year when its Committee on Special Education (CSE) created a substantively and procedurally deficient Individualized Education Program (IEP). Specifically, the Parent alleges that the CSE disregarded the recommendations contained in the Student’s neuropsychological evaluation and instead mandated a 12:[1] classroom with vague and immeasurable goals. Additionally, the CSE team was inappropriately comprised because it included no special education teacher as required by law. The Parent thereafter notified DOE that without an appropriate program or placement, she would continue the Student’s unilateral placement at the Private School for the 12-month 2022-2023 school year and seek tuition funding and reimbursement, as well as special transportation and meals reimbursement. [2]
I was appointed impartial hearing officer (IHO) on December 19, 2022; conducted two prehearing conferences on December 29, 2022, and January 27, 2023, respectively; and adjudicated a due process hearing on February 10, 2023. At the hearing, DOE made no opening statement or closing argument, and rested on its case on documentary evidence, including an affidavit from the school psychologist who participated on the CSE.[3] All exhibits offered by both parties were admitted into evidence, a list of which is appended to this Order. The Parties signed a pendency agreement on November 4, 2022, which acknowledged the Student’s current 12-month placement at the Private School and provided for special transportation. DOE did not hold a resolution meeting or file a due process response.
FINDINGS OF FACT
The Student is [REDACTED] years old and his eligibility for special education supports and services is not in dispute. He has been classified by DOE with “Other Health Impairment,” and has been diagnosed with Language Disorder and attention deficit hyperactivity disorder (ADHD).[4] He presents with deficits in communication, variable attention, fine motor functioning, adaptive skills, and writing.[5] His delays require him to be placed in a small classroom setting with regular one-to-one instruction.[6] He also requires speech-language (s/l) therapy to address poor speech intelligibility[7] and occupational therapy (OT) to assist with motor skills and adaptive skills delays. [8]
His current classroom at the Private School consists of 10 students (including himself) and three teachers.[9] The Private School also provides the Student with s/l therapy, OT, and counseling.[10] The Student’s most recent IEP dated July 1, 2022, notes the class size and supports provided at the Private School, and acknowledges the Student’s gains in literacy and math, s/l development, expressive language, transitioning and familiar routines, reading and writing activities, cognitive flexibility and problem-solving, and social development. [11]
Notwithstanding the Student’s progress in a 10:1:2 classroom, the IEP recommended a 12:1 class setting[12] and did not consider a smaller class size.[13] DOE’s psychologist deemed a smaller class (8:1+1) “too restrictive” and “not appropriate” because “his management needs do not require that high level of support.”[14] Per the IEP, the Student’s first three annual goals are as follows: “Within one year [the Student] will improve his pragmatic language skills;” “Within one year [the Student] will improve his expressive language skills;” and “Within one year [the Student] will improve his receptive language skills.” [15]
On June 22, 2022, the Parent sent a letter to DOE, stating that a 12:1 classroom was too large for the Student, and that in any event, she had yet to receive prior written notice of the recommendation or a school location letter.[16] The Parent also notified DOE that she would therefore continue the Student’s unilateral placement at the Private School.[17] DOE did not substantively respond to the notice. [18]
The Private School caters to students with special education needs, and specifically focuses on those with language-based learning disorders, motor delays, speech and language impairments, and attentional deficits such as the Student exhibits.[19] The Private School adheres to New York State Common Core academic standards, but also creates individualized learning plans for each student based on their specific learning challenges.[20] The Student’s two co-head teachers hold Master’s Degrees in Early Childhood Special Education, one with an emphasis in behavior disorders.[21] The Student’s other teachers (music, art, etc.) all hold Master’s Degrees. [22] The Student’s instructors, and therapists (s/l, OT, counseling) perform multiple formal and informal assessments each week that are content-specific and connected to classroom curriculum, to track his performance and identify goals.[23] As previously mentioned, the Student is measurably progressing in all areas. [24]
ANALYSIS
The IDEA and the New York Education Law require a school district to offer a FAPE to each child with an eligible disability residing in its district who requires special education programs or services.[25] A FAPE is offered to a student when (a) the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits; and (b) DOE complies with the procedural requirements set forth in the IDEA.[26] For a procedural violation, an impartial hearing 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 parent’s 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.[27] In general, an IHO’s decision must be made on substantive grounds as to whether the student received a FAPE.[28] DOE may be required to pay for educational services obtained for a student by his parent if a preponderance of the evidence shows: (a) the services offered by DOE were inadequate or inappropriate (e.g., the denial of a FAPE); (b) the services selected by the parent were appropriate; and (c) equitable considerations support the parent’s claim. [29]
Prong 1 – FAPE Denied to the Student
A school district offers a student a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” [30] An IEP must include a statement of the student’s present levels of academic achievement and functional performance; annual goals designed to meet the student’s needs resulting from his disability and that enable him to make progress in the general education curriculum; and provide appropriate special education and services.[31] “A reviewing court may fairly expect [DOE] to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of [his] circumstances.” [32]
In this case, DOE presented no evidence to establish how the Student’s 2022-2023 IEP was reasonably calculated to enable the child to make progress appropriate in light of his circumstances, particularly when DOE offered no cogent explanation for placing the Student in a 12:1 classroom and no tangible information about his annual goals. The psychologist’s explanation that the Student did not need a smaller class because his management needs did not require it does not clarify the issue; rather, it only restates it (i.e., the Student does not need it because he does not need it). Moreover the Student’s annual goals contain no specifics whatsoever, with respect to objectives, benchmarks, or metrics. Because DOE provided no explanation, let alone a cogent and responsive one, for how the IEP was reasonably calculated to enable the Student to make appropriate progress in light of his specific circumstances, it did not establish that it offered him a FAPE for the 2022-2023 school year.
Prong 2 – Appropriateness of Unilateral Placement Established
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 seeking tuition reimbursement for a unilateral placement in a private school setting has the burden of persuasion and burden of production on the appropriateness of such placement. A “private placement is only appropriate if it provides ‘education instruction specifically designed to meet the unique needs of a child.’” [33]
The Parent notified DOE on June 22, 2022, that without an appropriate program or placement, she would continue the Student’s unilateral placement at the Private School for the 2022-2023 school year. DOE did not respond. At the hearing, the Parent provided the Student’s class schedules, progress reports, and program description; the Parent’s signed enrollment contract; and the testimony of the Program Director at the Private School. The Private School provides special education for children with learning disabilities like the Student, taught in small class sizes by instructors with Masters Degrees and with prior teaching experience. The Student progressed in all areas of study as shown in progress reports, the IEP itself, and the affidavit and live testimony of the Program Director at the Private School. I find that the Parent’s witness provided comprehensive, consistent, and credible testimony. I further find that the Parent established that the placement of the Student in the Private School provides educational instruction specially designed to meet his unique needs, supported by such services as are necessary to permit him to benefit from that instruction.
Prong 3 – Equitable Considerations Favor the Parent
Although the hearing officer may deny the Parent tuition reimbursement for: (a) unreasonably rejecting DOE’s proposed changes to the IEP, or otherwise behaving unreasonably; (b) failing to make the student available for an evaluation; or (c) failing to timely notify DOE of her intent to reject the proposed IEP and enroll the student in a private school at public expense,[34] no facts support such a finding in this case. DOE made no claim and provided no evidence that the Parent behaved unreasonably or failed to make the Student available for an evaluation, nor did DOE object to the Parent’s proffer of a “Ten Day Notice of Intent” to continue the Student’s unilateral placement at the Private School, and seek funding and reimbursement. In contrast, DOE failed to adhere to two procedural requirements necessary once a parent files a DPC: conducting a resolution meeting[35] and filing a due process response. [36]
The Parent’s enrollment contract shows that the Private School charged $92,300 for the 12-month, 2022-2023 school year,[37] of which the Parent paid $400, 38 with a remainder of $91,900.00 due and owing.[39] I find that the equities favor the Parent and warrant tuition funding and reimbursement forthwith.
Meals Reimbursement and Funding Not Granted
38 Ex. E.
The Parent also seeks reimbursement and prospective funding for the Student’s meals (breakfast and lunch) and estimates meal costs of $10.50 per day for 230 school days (i.e., 46 school weeks, the 12-month school year), totaling $2,415.00.[40] However, the provision of breakfast and lunch at no cost to a student with a disability, unrelated to any special education need, is not required by the IDEA or Article 89 of the Education Law.[41] On this record, there is nothing to support that Parent’s request, wherein the meals could be characterized as “special education,” a “related service,” or “supplementary aids and services.”[42] The Parent provided no evidence that the Student required any specialized nutritional services in order to benefit from his special education or that the request for breakfast and lunch was related to any of his special education needs. Last the Parent did not raise this claim in the DPC under Section 504 of the Rehabilitation Act of 1973; therefore, I do not analyze her request under that provision of law.
ORDER
Based upon the above Findings of Fact, it is HEREBY:
1. ORDERED that DOE shall fund the tuition owing directly to the Private School for the Student’s placement during the 12-month 2022-2023 school year in a sum not to exceed $91,900.00. (Ninety-One Thousand Nine Hundred Dollars);
2. FURTHER ORDERED that DOE shall reimburse the Parent for monies paid to the Private School for the Student’s placement during the 12-month 2022-2023 school year in the sum of $400. (Four Hundred Dollars);
3. FURTHER ORDERED that DOE shall provide the Student with door-to-door transportation to and from the Private School for the 12-month, 2022-2023 school year;
4. FURTHER ORDERED that the Parent’s remaining claims are DISMISSED WITH PREJUDICE.
SO ORDERED.
DATED: March 4, 2023
/s/ Roberta Wolf, Esq.
Impartial Hearing Officer
Roberta Wolf
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
1. Individualized Education Program (IEP) June 10, 2022 21 pages DOE
2. Prior Written Notice June 14, 2022 4 pages DOE
3. Progress Report June 2022 6 pages DOE
4. Affidavit of [REDACTED] January 27, 2023 3 pages DOE
PARENT EVIDENCE
A. Hearing Request 9/19/22 6 pages
B. Neuropsychological Evaluation 9/27/21 18 pages
C. Ten Day Notice 6/22/22 2 pages
D. Ten Day Notice Confirmation 6/22/22 1 page
E. [REDACTED] Tuition Affidavit 7/6/22 1 page
F. [REDACTED] Mid-Year Report 2/2/23 10 pages
G. [REDACTED] Enrollment Contract 2/23/22 2 pages
H. [REDACTED] Summer Class Schedule 2022-2023 1 page
I. [REDACTED] Class Schedule 2022-2023 2 pages
J. [REDACTED] Program Description 2022-2023 1 page
K. Special Education Standard Operating Procedures Manual Excerpt: Extended Day Undated 4 pages
L. Affidavit of Testimony: [REDACTED] Undated 7 pages
M. Affidavit of Testimony: [REDACTED] Undated 3 pages
N. Meals Affidavit Undated 1 page
Footnotes
[1] Ex. A.
[2] Id.
[3] Ex. 1-4.
[4] Ex. 1-1, B11.
[5] Ex. B11.
[6] Id.
[7] Ex. 1-6.
[8] Ex. B.
[9] Ex. J.
[10] Ex. 1-1, 1-2.
[11] Ex. 1-2 through 1-4.
[12] Ex. 1-13.
[13] Ex. 1-29.
[14] Ex. 4-3.
[15] Ex. 1-7 through 1-9.
[16] Ex. C.
[17] Id.
[18] Ex. D.
[19] Ex. L.
[20] Id.
[21] Ex. L4.
[22] Id.
[23] Ex. L5.
[24] Ex. 1, 3, B, F, L, M.
[25] 20 U.S.C. § 1412 (a)(1)(A); Education Law §§ 4402(2)(a), (b)(2).
[26] Board of Education v. Rowley, 458 U.S. 176, 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005).
[27] 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 (S.D.N.Y. 2007).
[28] 20 U.S.C. § 1415(f)(3)(E)(i).
[29] School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993); Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 (2d Cir. 2006), cert denied, and Board of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 WL 2982269 (Oct. 15, 2007).
[30] Rowley, 458 U.S. at 203.
[31] See 34 C.F.R. § 300.320(a)(4); 8 NYCRR 200.4(d)(2)(v); see Application of the Dep’t of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep’t of Educ., Appeal No. 06- 029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02- 014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9.
[32] Endrew F. v. Douglas County School District, 137 S. Ct. at 1002 (2017).
[33] Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 115 (2d Cir. 2007) (citing Frank G., 459 F.3d at 365 (quoting Rowley, 458 U.S. at 188-89)).
[34] S.W. v New York City Dep’t of Educ., 646 F. Supp. 2d 346, 361-363 (S.D.N.Y. 2009).
[35] 34 CFR § 300.510(a).
[36] 34 CFR § 300.508(e)(f), 8 NYCRR §§ 200.5(j)(2), (i)(4).
[37] Ex. G.
[39] Id.
[40] Ex. N.
[41] Application of the Bd. of Educ., Appeal No. 05-033. (Also holding that the IHO exceeded her authority and erred in ordering the district to provide meals to the student).
[42] Id.