New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 588651 – NYC: 239798

FINDINGS OF FACT AND DECISION

Student’s Name: REDACTED REDACTED

School District: New York City Department of Education Hearing Requested by: Parent Request Date/Date Complaint Filed: September 29, 2022

Date(s) of Hearing: December 21, 2022

January 3, 2023

February 6, 2023

March 9, 2023

Actual Record Closed Date: March 16, 2023

Date of Decision: March 27, 2023

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

NAMES AND TITLES OF PERSONS WHO APPEARED

December 21, 2022

For the Student:

REDACTED REDACTED, Law Clerk

For the Department of Education:

None

NAMES AND TITLES OF PERSONS WHO APPEARED

January 3, 2023

For the Student:

REDACTED REDACTED, Esq.

For the Department of Education:

None

NAMES AND TITLES OF PERSONS WHO APPEARED

February 6, 2023

For the Student:

REDACTED REDACTED, Esq.

For the Department of Education:

None

NAMES AND TITLES OF PERSONS WHO APPEARED

March 9, 2023

For the Student:

REDACTED REDACTED, Esq.

REDACTED REDACTED, Parent Student

REDACTED REDACTED, Educational Director, REDACTED School

For the Department of Education:

None

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 29, 2022. Ex. A.^[1] On December 13, 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”) for the 2021-2022 school year. Ex. A.

I conducted a prehearing conference on December 21, 2022. An advocate appeared on behalf of REDACTED’s parent; no one appeared on behalf of the Department. The advocate confirmed that REDACTED’s parent was seeking tuition reimbursement for REDACTED for the 2021-2022 school year, that the Department had referred the case for settlement, and that parent’s counsel was awaiting a settlement offer from the Department. I scheduled the hearing for January 3. On January 3, counsel for REDACTED’s parent appeared; no one appeared on behalf of the Department. Procedural matters with respect to the hearing were discussed, and the hearing was rescheduled to February 6.

On February 6, counsel for REDACTED’s parent appeared; no one appeared on behalf of the Department. Counsel reported that REDACTED’s parents wished to continue to try to resolve this matter through settlement but that there had been no progress on the settlement. The hearing was rescheduled one final time to permit the parties time to resolve this matter through settlement.

On March 9, the Department again failed to appear, and the hearing went forward in the Department’s absence. REDACTED’s parent and the educational director of REDACTED testified. Parent’s Exhibits A through O were admitted in evidence. Parent’s counsel provided a closing statement; after the conclusion of the hearing, counsel forwarded an evaluation of REDACTED, which was admitted in evidence as Parent Exhibit P.

The record was closed on March 16, 2023, upon the receipt and review by the Hearing Officer of the transcript of the final day of hearing.

Counsel for the Parent requested extensions of the compliance date, and written Orders of Extension were issued on December 21, 2022, and January 3, February 6, and March 9, 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.

ISSUES

REDACTED parents request reimbursement for tuition owed to REDACTED for REDACTED’s enrollment at REDACTED for the 2021-2022 school year. At the hearing, the Department did not defend the special education program that it offered to REDACTED for the 2021-2022 school year. The issues to be resolved are:

1. Was REDACTED an appropriate unilateral parental placement for REDACTED for the 2021-2022 school year?

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

FINDINGS OF FACT

1. REDACTED is a now REDACTED-year-old boy who is eligible for special education and services under the IDEA and whose disability, for the purposes of the IDEA, is classified as speech or language impairment. Ex. A at 1.

2. REDACTED has struggled with speech and language since early childhood and experiences an REDACTED, and he continues to struggle with speech and language, attention, retaining learned skills, social skills, and rigid behaviors and “thinking patterns.”

Tr. 39-40, 79-81. He experiences delays across all developmental domains. Ex. P.

3. REDACTED received speech, occupational and physical therapies through Early Intervention and during preschool. Tr. 85-86.

4. REDACTED enrolled in REDACTED for the 2019-2020 school year, and continued at the school for the 2020-2021 school year. Tr. 38, 89.

5. REDACTED’s parents, through counsel, submitted a “ten-day” notice letter to the Department on June 17, 2021. Ex. B. In the letter, REDACTED’s parents informed the Department that had not scheduled an IEP meeting or offered a placement for REDACTED for the 2021-2022 12-month school year and that they would be continuing REDACTED at REDACTED and seeking tuition reimbursement from the Department. Ex. B.

6. REDACTED’s mother attended an IEP meeting for REDACTED on September 17, 2021. The CSE recommended that REDACTED attend a 12:1:1 program, but REDACTED’s mother disagreed with the program and then never received a copy of the IEP from the meeting or a school placement from the Department. Tr. 90-92.

7. REDACTED is a nonpublic school for students with disabilities. It is a “skill-based” program with small classes and which utilizes Applied Behavioral Analysis (“ABA”) for learning and behavior interventions. The school also provides social skills instruction, integration of related services with classroom teaching, and one-to-one support and instruction throughout the school day for learning, behavioral intervention and social skills training. Tr. 36-37; Ex. D.

8. The educational director of REDACTED described ABA as “the science of motivation and learning” to increase positive behaviors, decrease negative behaviors, and increase learning and social skills. Tr. 37.

9. At the beginning of the 2021-2022 school year, REDACTED struggled with academics, social skills, expressive language, self-regulation, learning difficulties, motivation (because learning was hard for him), and behaviors which interfered with his learning (silly and inappropriate behaviors; shutting down and refusing to comply in order to avoid learning tasks; tantrumming including crying and screaming in response to changes in routine). Tr. 43-44, 46-47, 49.

10. REDACTED’s skills were on approximately a first grade level in reading and a beginning first grade level in math. Tr. 76-77

11. REDACTED classes include six students, a head teacher, and a one-to-one instructor for each students. Tr. 40.

12. REDACTED needed this small classroom setting because his attention, distractibility and behavioral issues would not have been able to be managed in a larger classroom. Tr. 64.

13. REDACTED provided REDACTED with an individualized curriculum and one-to-one instruction. Tr. 50.

14. REDACTED’s program included “all areas of development”—academics, socialemotional, behavior and ADL skills. Tr. 41-42.

15. REDACTED needed a 12-month program in order to prevent regression; he struggled with retention of material and a slow rate of learning. Tr. 42. He needed “an intense amount of review and repetition” because he “very easily loses skills, especially academic skills.” Tr.

42, 73.

16. REDACTED provided REDACTED with an intensive social skills curriculum in which skills were broken down, taught sequentially, and reinforced through collaboration with the speech therapist. Tr. 44-45.

17. REDACTED provided REDACTED with a Behavior Intervention Plan and other behavioral strategies developed by the school’s BCBA. These interventions included

“proactive” measures such as reinforcement and breaking tasks down so that he could feel successful. Tr. 47, 70; Ex. D. 18. REDACTED benefited from ABA because he needed material to be broken down into small components in order to learn and to make academic, social, and behavioral progress. Tr. 63-64, 67-68. 19. REDACTED needed one-to-one teaching due to his poor attention span and distractibility; without such teaching, he does not attend to or understand material presented to him. Tr. 71. 20. REDACTED’s schedule included morning OT group, morning meeting, academic instruction, ADL skills, a mid-day OT group, physical education, lunch/ADL skills, peer play, social group, sensory motor group, play and social skills, and end of day OT group. Ex. C. 21. The academic program included instruction in letters of the alphabet, phonemic awareness, Orton Gillingham-based instruction for reading and spelling, listening and reading comprehension, and basic number sense. Tr. 49-50; Ex. K. 22. In math, REDACTED benefitted from use of concrete materials to work on basic number concepts and the basics of addition. Tr. 51. 23. REDACTED also benefited from a multisensory approach to handwriting. Tr. 51. 24. REDACTED also worked on ADL skills at REDACTED, specifically self-care skills, dressing, and mealtime skills. Tr. 53-54. 25. REDACTED provided REDACTED with the related services of speech, occupational and physical therapies and counseling. Tr. 54. 26. In occupational therapy, REDACTED worked on self-regulation, body awareness, sensory processing, coordination, strength, fine motor skills, handwriting and ADL skills. Tr. 54-55; Ex. I. 27. In physical therapy, he worked on gross motor movement, ambulation, agility, sequencing, ball skills, and motor control. Tr. 56; Ex. H. 28. In speech therapy, he worked on speech intelligibility, receptive and expressive language, social skills, pragmatic language and play skills. Tr. 57-58; Ex. F. 29. REDACTED personnel collect data across all aspects of the curriculum and collected data with respect to REDACTED’s performance at school. Tr. 45. 30. REDACTED made progress at REDACTED during the 2021-2022 school year (Tr. 45-47, 50-58, 93-95; Exs. F, G, H, I, J, K): a. Improved his expressive language as demonstrated by his growth in initiating conversations and communicating with his peers; b. His speech articulation improved and he was more easily understood; c. He learned how to gain the attention of others in appropriate ways; d. His interfering behaviors decreased; e. Understood letters and their corresponding sounds, and learned basic CVC words and improved his sight word vocabulary; f. Improved his listening comprehension; g. Improved his understanding of basic number concepts; h. He learned to form lower case letters and to write his name; i. Learned basic self-care and mealtime skills; j. He improved through occupational therapy: increased self-regulation; body awareness, strength, and coordination; k. his gross motor skills improved, and he improved his ambulation, agility, sequencing, ball skills and motor control; and l. His speech intelligibility improved. 31. REDACTED’s mother signed an enrollment contract for REDACTED’s attendance at REDACTED for the 2021-2022 school year. Tr. 95; Ex. L. The tuition amount set forth in the contract is $120,000.00 for the 12-month school year. REDACTED’s parents are obligated to pay this amount. Ex. L. They have not paid the tuition as of the time of the hearing. Ex. M. 32. REDACTED’s parents were, at the time of the hearing, financially unable to pay the tuition. Tr. 95-96; Ex. O.

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 DOE did not present testimony or documentary evidence with respect to its provision of FAPE to REDACTED for the 2021-2022 school year. Since the Department did not offer any testimony or documentary evidence to demonstrate that a program it had developed for REDACTED for the 2021-2022 school year was “reasonably calculated” to permit him to make progress given his 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 2021-2022 school year?

REDACTED’ parents bear 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) (Summary 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 provided REDACTED with an educational environment in which his specific and identified special education needs were addressed. In particular, REDACTED addressed REDACTED’s need for small classes in which he received an individualized programming and one-to-one instruction as well as ABA, a Behavior Intervention Plan, teacher supports, related services and a 12-month program that he required in order to address his behavioral, speech and language and global delays so he could 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 7 through 28, above. REDACTED made progress at REDACTED during the 2021-2022 school year. See paragraph 30, above.

The evidence thus demonstrates that REDACTED provided 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 was appropriate for REDACTED for the 2021-2022 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’ parents cooperated with the CSE by attending the CSE meeting, communicating with Department personnel about their 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). There is no indication in the record that REDACTED’s parents impeded the Department’s efforts to offer REDACTED a FAPE.

Furthermore, REDACTED’s parents have an obligation under the contract to pay REDACTED’s tuition at REDACTED for the 2021-2022 school year. A hearing officer may, where the other requirements of Burlington and Carter permit, order prospective payment to a school or provider (rather than reimbursement to a parent) because: (1) such payment is permitted by Connors v. Mills, 34 F. Supp. 2d 795 (N.D.N.Y. 1998); and (2) it would be patently unfair to extend the protections granted by the United States Supreme Court in Burlington and Carter only to those disabled children whose parents happen to have the financial wherewithal to “front” the entire amount of the private school tuition, as in the instant case, and subsequently seek repayment from the school district. See also Ferreira v. New York City Dep’t of Educ., 22 Civ. 4993 (S.D.N.Y. March 14, 2023). Equitable considerations thus favor the award of relief to REDACTED’s parents. As a result, REDACTED’s parents prevail 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’ placement at The REDACTED School for the 2021-2022 12-month school year. The amount of funding for the 2021-2022 12-month school year shall not exceed $120,000.00.

SO ORDERED.

DATED: March 27, 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

PARENT EXHIBITS

A. Exhibit Date Title Number of Pages Impartial Hearing Request 09/29/2022 3 pages

B. Ten Day Notice Letter and Email Confirmation 06/17/2021 2 pages

C. Daily Schedule 2021-2022 2 pages

D. Program Description 2021-2022 4 pages

E. Behavioral Intervention Plan 2021-2022 6 pages

F. Speech Progress Report 2021-2022 5 pages

G. Counseling Progress Report 2021-2022 2 pages

H. Physical Therapy Progress Report 2021-2022 3 pages

I. Occupational Therapy Progress Report 01/20/2022 4 pages

J. Occupational Therapy Annual Assessment Checklist May 2022 8 pages

K. Educational Progress Report 2021-2022 6 pages

L. Enrollment Contract 07/20/2021 6 pages

M. Affidavit of Payment 05/02/2022 1 page

N. Attendance Record 2021-2022 1 page

O. U.S. Individual Income Tax Return 2020 3 pages

P. Psychological Evaluation 03/07/2021 7 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.”