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CASE NUMBER: 588655 – NYC: 239802
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, 2023
Date(s) of Hearing: December 21, 2023
January 3, 2023
February 8, 2023
April 3, 2023
May 3, 2023
Actual Record Closed Date: May 17, 2023
Date of Decision: May 30, 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, 2023
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:
[REDACTED] [REDACTED], Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
February 8, 2023
For the Student:
[REDACTED] [REDACTED], Esq.
For the Department of Education:
[REDACTED] [REDACTED], Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
April 3, 2023
For the Student:
[REDACTED] [REDACTED], Esq.
For the Department of Education:
None
NAMES AND TITLES OF PERSONS WHO APPEARED
May 3, 2023
For the Student:
[REDACTED] [REDACTED], Esq.
[REDACTED] [REDACTED], Parent Student
[REDACTED] [REDACTED], Educational Director, [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 29, 2023. Ex. A.[1] On December 13, 2023, 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 2022-2023 school year. Ex. A.
I conducted a prehearing conference on December 21, 2023. 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 2022-2023 school year, that the Department had referred the case for settlement, and that parent’s counsel was awaiting a settlement offer from the Department. The advocate requested a pendency hearing, and I scheduled the hearing for January 3. On January 3, counsel for [REDACTED]’s parent and for the Department appeared. Counsel reported that the parties had resolved pendency and that Parent withdrew the request for a pendency hearing. Procedural matters with respect to the filing of an amended demand were discussed. The amended demand, which had been filed on November 29 was processed by the Impartial Hearing Office and accepted by the Department on January 3.
On February 8, after the conclusion of the second resolution period, counsel for [REDACTED]’s and for the Department parent appeared. The case remained “under investigation” for settlement by the Department. The hearing was scheduled for March 10; this date was cancelled due to the filing of a second amended demand, and the acceptance of that demand, on March 3.
On April 3, after the conclusion of the third resolution period, counsel for [REDACTED]’s parent appeared; the Department failed to appear. The hearing was rescheduled for May 3.
On May 3, counsel for [REDACTED]’s and for the Department parent appeared. The Department waived its opening statement and rested its case without presenting the testimony of witnesses or offering documents in evidence. [REDACTED]’s parent and the educational director of [REDACTED] testified. Parent’s Exhibits A through N were admitted in evidence. Parent’s counsel provided a closing statement.
The record was closed on May 17, 2023, upon the receipt and review by the Hearing Officer of the transcript of the final day of hearing.
Counsel requested extensions of the compliance date, and written Orders of Extension were issued on December 21, 2022, and January 3 and May 3, 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.
Parent, through counsel, consented to the hearing being conducted via videoconference and the decision being distributed via email. Tr. 3.
ISSUES
[REDACTED] parents request reimbursement for tuition owed 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 unilateral parental placement for [REDACTED] for the 2022-2023 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 [REDACTED], and he continues to struggle with speech and language, auditory processing, attention, retaining learned skills, social skills, motivation, and rigid behaviors and maladaptive behaviors, including tantrumming, crying and screaming. Tr.
51-52, 87-88.
3. [REDACTED] received speech, occupational and physical therapies through Early Intervention and during preschool. Tr. 88. In preschool, he also had SEIT services. Tr.
89.
4. [REDACTED] enrolled in [REDACTED] for the 2019-2020 school year, and continued at the school through the 2022-2023 school year. Tr. 51.
5. [REDACTED]’s parents, through counsel, submitted a “ten-day” notice letter to the Department on June 16, 2022. Ex. D. In the letter, [REDACTED]’s parents informed the Department that it had failed to offer a school placement for [REDACTED] for the 2022-2023 12-month school year and that they would be continuing [REDACTED] at [REDACTED] and seeking tuition reimbursement from the Department. Ex. D.
6. [REDACTED]’s mother attended an IEP meeting for [REDACTED] on September 2022. The CSE recommended that [REDACTED] attend a 12:1:1 program, but [REDACTED]’s mother disagreed with the program because the class size was too large and [REDACTED] would not be able to learn. Tr. 90-91.
7. [REDACTED] is a nonpublic school for students with disabilities, including students diagnosed with [REDACTED]. The school utilizes Applied Behavioral Analysis (“ABA”) for learning and behavior interventions. The school also provides integration of related services with classroom teaching, and one-to-one support and instruction for learning, behavioral intervention, and social skills training. Tr. 47-48.
8. The educational director of [REDACTED] described ABA as a researched-based “science of motivation and learning” to increase positive behaviors, decrease negative behaviors, and increase learning and social skills. Tr. 49-50.
9. [REDACTED] classes include seven students, a head teacher, and a one-to-one instructor for each student. Tr. 52-53. [REDACTED] is enrolled in such a class.
10. [REDACTED] receives one-to-one instruction or support throughout the school day. With Eliyah, the instructors utilize ABA, individualized academic programming, his individualized behavior intervention plan, and sensory integration techniques to ensure that he is attending to learning and making progress. Tr. 58-59, Exs. H, I.
11. [REDACTED] benefitted from ABA because ABA breaks down skills one step at a time and teaches them in a one-to-one setting, which is what [REDACTED] needs to learn. Tr.
81.
12. [REDACTED]’s behavior intervention plan (“BIP”) was developed by a BCBA at [REDACTED] in collaboration with the director of special education, and his classroom teacher and related services providers. Ex. I; Tr. 65. The BIP targets noncompliance (including leaving the classroom), rigid behavior patterns, and silly behaviors to seek attention. Ex. I. School staff implemented the strategies included in the BIP; as a result, [REDACTED]’s noncompliance, rigidity and “silliness” were reduced by a “significant amount” during the 2022-2023 school year. Tr. 66-67.
13. [REDACTED] needs much review and repetition of material, with skills broken down into very small steps. Tr. 54.
14. During the summer 2022 program, [REDACTED]’s program focused on academics (specifically letter-sound identification, beginning decoding skills, phonological awareness, comprehension, and math), social-emotional skills, articulation, and ADL skills. Tr. 53-55.
15. [REDACTED] needs a 12-month program in order to prevent regression; he struggles with retention of material, frustration, and a slow rate of learning. Tr. 55. He needs much review and repetition as well as consistency, structure, and reinforcement of positive behaviors.
Tr. 55-56.
16. [REDACTED]’s schedule for the 2022-2023 school year includes morning regulation/core strength group, morning meeting (including social skills), academic instruction, physical education, ADL skills, a mid-day exercise group, lunch/ADL skills, peer play, sensory motor group, play and social skills, and end of day OT group. Ex. K.
17. [REDACTED]’s academic program focuses on learning skills in the areas of reading, writing and math (Ex. H at 2):
a. [REDACTED] struggled in reading due to his attention, behavior, auditory processing difficulties, and lack of phonemic awareness. His teacher worked with him using Orton-Gillingham, a multi-sensory approach to reading that includes much repetition (which he needs), on phonemic awareness and basic phonics. Tr.
68-69.
b. In math, he worked on basic math concepts (larger/smaller), addition facts, addition, subtraction, and addition problem-solving. Tr. 70-71.
c. He worked on handwriting, sequencing to tell a story, and formulating sentences. Tr. 72-73.
18. [REDACTED] provided [REDACTED] with a “social thinking” curriculum, implemented with the collaboration of the speech therapist, to (a) “break down the social skills into very, very small steps;” (b) implement social skills goals throughout the school day, including in one-to-one and small group settings to help [REDACTED] understand that his behaviors affect the feelings of others and have consequences for him; and (c) work on conversation skills, play skills, and problem solve when difficulties arise, rather than being rigid and becoming upset. Tr. 60-61.
19. [REDACTED] provided [REDACTED] with the related services of speech, occupational and physical therapies and counseling:
a. In occupational therapy, [REDACTED] worked on self-regulation, body awareness, sensory processing, coordination, strength, fine motor skills, handwriting and ADL skills. Ex. G.
b. In physical therapy, he worked on gross motor movement, ambulation, agility, sequencing, ball skills, coordination, and motor control. Ex. F.
c. In speech therapy, he worked on speech intelligibility, receptive and expressive language, pragmatic language, and social skills. Tr. 73; Ex. E.
20. [REDACTED] staff collected data daily to assess [REDACTED]’s skills. Ex. H at 1.
21. [REDACTED] made progress at [REDACTED] during the 2022-2023 school year (Tr. 62-64, 67-73, 97; Exs. E, F, G, H): a. He understood letters and their corresponding sounds, learned CVC words, and improved his sight word vocabulary; b. He improved his math fluency and his understanding of math concepts as well as addition and subtraction; c. He improved his expressive language as demonstrated by his growth in initiating conversations and communicating with his peers; d. His handwriting became legible; e. He improved his ability to sequence a story and add details; f. He learned how to gain the attention of, and interact with, others in appropriate ways; g. He developed his social interaction, conversation, and play skills; h. His interfering behaviors decreased significantly; i. H learned, and continued to improve, his basic self-care and mealtime skills; j. He improved through occupational therapy: increasing 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 receptive and expressive language skills improved.
22. [REDACTED]’s mother signed an enrollment contract for [REDACTED]’s attendance at [REDACTED] for the 2022-2023 school year. Tr. 95; Ex. M. The tuition amount set forth in the contract is $127,500.00 for the 12-month school year. [REDACTED]’s parents are obligated to pay this amount. Ex. L. They had paid $500.00 towards the tuition as of the time of the hearing. Ex. M.
23. [REDACTED]’s parents were, at the time of the hearing, financially unable to pay the tuition. Tr. 93-94; Ex. N.
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 2022-2023 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 2022-2023 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 2022-2023 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 19, above. [REDACTED] made progress at [REDACTED] during the 2022-2023 school year. See paragraph 21, 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 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]’ parents cooperated with the CSE by attending CSE meetings, 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 2022-2023 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]’s placement at The [REDACTED] School for the 2022-2023 12-month school year; payment shall be direct payment to the School in the amount of $127, 000.00 and reimbursement to [REDACTED]’s parent in the amount of $500.00. The amount of funding for the 2022-2023 12-month school year shall not exceed $127,500.00.
SO ORDERED.
DATED: May 30, 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
PARENTS’ EXHIBITS
A. Exhibit Date Title Number of Pages Impartial Hearing Request 09/29/2022 3 pages
B. Amended Impartial Hearing Request 11/29/2022 3 pages
C. Amended Impartial Hearing Request 03/03/2023 4 pages
D. Ten Day Notice Letter and Confirmation 06/16/2022 2 pages
E. Speech Therapy Progress Report 01/12/2023 3 pages
F. Physical Therapy Progress Report 01/25/2023 4 pages
G. Occupational Therapy Progress Report 02/23/2023 4 pages
H. Educational Progress Report January 2023 7 pages
I. Behavioral Intervention Plan 2022-2023 6 pages
J. Attendance 2022-2023 1 page
K. Schedule 2022-2023 1 page
L. Tuition Affidavit 01/09/2023 1 page
M. Enrollment Contract 07/1/2022 5 pages
N. Tax Returns 2020 2 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.”