New York City Department of Education, Impartial Hearing Decision

CASE NUMBER:589822 - NYC: 240831

FINDINGS OF FACT AND DECISION

NAMES AND TITLES OF PERSONS WHO APPEARED

APRIL 25, 2023

For the Student:

[REDACTED], Attorney

For the Department of Education:

[REDACTED], Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

MAY 23, 2023

For the Student:

[REDACTED], Attorney

[REDACTED], Parent Student

[REDACTED], Principal

For the Department of Education:

[REDACTED], Attorney

INTRODUCTION AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parent’s Due Process Complaint (“DPC"), dated October 27, 2022. (Ex. P-A)2. The record does not

2 Exhibits shall be referred to as follows: “P” for Parents’ Exhibit; “D” for District’s or Department’s Exhibits; and “IHO” for Impartial Hearing Officer’s Exhibits. Exhibits will be followed by the exhibit number and page numbers as needed and appropriate. contain any evidence of a response by the [REDACTED] (hereinafter referred to as “the District”). This IHO was appointed on December 23, 2022. A pre-hearing conference was held on January 3, 2023. [REDACTED] appeared on behalf of the Parent. [REDACTED] appeared on behalf of the District. The parties requested status conferences to attempt to resolve the matter. Status conferences were held on February 2, 2023, March 2, 2023 and March 31, 2023. As of the last status conference, the District had still not obtained settlement approval from the comptroller, and a hearing date was scheduled for April 25, 2023. The hearing commenced on April 25, 2023, and counsel for both parties appeared. The District conceded that it would not be presenting a case and waived an opening statement (T:38-39). The Parent made an opening statement on the record and introduced exhibits A-I.^[3] into the record without objection (T:39-40). The hearing continued with witnesses for the Parent on May 23, 2023.

Six extensions of the compliance date were granted at the request of the parties. Two witnesses testified on behalf of the Student, including the Student’s mother. Counsel for the District waived a closing statement (T:146). Counsel for the Parent made a closing statement on the record (T:147-151). The record was closed on June 9, 2023.

JURISDICTION

The due process hearing was held, and a decision in this matter is being 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 the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.

BACKGROUND

The Student was six years old at the time of the filing of the DPC. He was classified by the District’s Committee on Special Education (“CSE”) as a student with a speech or language impairment. The Student attended [REDACTED] (hereinafter referred to as the private school) for the 2021-22 and 2022-23 school years. No IEP or school placement was offered by the District for the 2022-23 school year.

ISSUES

The DPC alleges that the District failed to offer the Student a free appropriate public education (“FAPE”) for the 2022-23 school year by failing to develop an Individualized Education Program (“IEP”) or recommending a placement. The DPC seeks a combination of direct payment and reimbursement of tuition for the Parent’s unilateral placement at the private school for the 2022-23 school year. As stated above, the District did not provide evidence of a written response to the claims raised in the DPC.

FINDINGS OF FACT

The Parent testified that the Student has been diagnosed with ADHD, autism, speech impairment and educational difficulties. The Student was referred to Early Intervention and received services. He attended a special education preschool pursuant to a District IEP. He attended kindergarten at [REDACTED] in a 12:1:1 class (T:124-25, 127). He remained there for two years. The Parent testified that she would get calls on a daily basis from school staff that they could not manage his disruptive behavior (T:127). The Parent placed the Student at the private school for 2021-22. On May 9, 2022, the Parent signed a tuition contract for the 2022-

23 school year which included tuition and the cost of a 1:1 paraprofessional. It was countersigned by the private school on September 6, 2022 (Ex. P-G). On May 9, 2022, the Parent also signed an addendum for the services of a behavioral consultant (Ex. P-G).

The Parent wrote to the District on August 15, 2022 advising the District that she had not received an IEP or placement recommendation for her son for the 2022-23 school year. The Parent received no response (Ex. P-B, T:129-30). The Parent testified that she reenrolled the Student at the private school for the 2022-23 school year because she has seen a lot of progress, and he is happy in the program (T:130). She testified that the staff at the private school have been able to handle his behavioral challenges (T:134). She testified that she believes the private school is meeting his needs (T:135). [REDACTED] the Principal at the private school and hereinafter referred to as “the Principal” testified that she is a New York State licensed psychologist and New York State certified school psychologist (T:60). She has been the principal at the private school for five years (T:61). The assistant principal is a BCBA and certified special education teacher. For the 2022-23 school year, the school enrolled 23 students aged 5 to 13 in four different classrooms (T:62,64). All of the students have IEPs. Their classifications include primarily autism, speech-language impairment and learning disability (T:63). Students are grouped in classes with a three-year age span and similar functioning cognitively, socially, behaviorally and language (T:64). The largest class is an 8:1:1 (T:65). The school offers the related services of occupational therapy (OT), physical therapy (PT), speech therapy and counseling, as well as art therapy and recreational opportunities (T:62).

The Principal testified that she first met the Student when he and his mother toured the private school. He entered in 2021-22 (T:66-67). She supervises his staff and meets regularly with his providers. She coordinates team meetings and attends parent-teacher conferences. She described the Student’s greatest strengths as his eagerness to please and his interest in his surroundings and peers (T:67). His greatest difficulties include his rigidity and his social deficits. He struggles with perspective taking, turn taking and social expectations (T:68). He is in a 6:1:1 classroom with a total of 5 students aged 5 to 7. The students’ academic skills are on the K-1 grade level. His teacher has a master’s in special education and a provisional certification. In the classroom, there is an assistant teacher, a paraprofessional for the Student and another paraprofessional assigned to a different student (T:69-70). There is also a BCBA assigned to the classroom that provides behavioral consulting two days per week (T:72-73).

The Principal testified that the Student is making very nice progress this year, and the private school has been able to work on having the paraprofessional step back a little to decrease his dependence on prompting, particularly with regard to his executive functioning skills. Behaviorally, his task avoidance has improved, but staying on task can still be a challenge for him. His language skills have really been evolving and his ability to participate in whole-group instruction is improving (T:71-72). The supports in place for the Student have allowed him to make steady progress (T:98). He has goals in basic math operations and word problems, reading cvc and basic sight words, answering wh questions and sequencing events when stories are read to him, science and social studies content, class participation, interacting with peers, speech comprehension and pragmatics, fine/graphomotor skills and coordination (EX. P-D-1-2). He is expected to meet his goals this year (T:106-07).

A description of the program is in evidence as exhibit P-F and describes the general curriculum, related services, social skills and growth and enrichment activities available to students. The program includes mainstreaming opportunities with local schools (T:75). His schedule is in evidence as exhibit P-E4. The Principal described in detail each of his daily activities as listed on the schedule and how the instructional and related services specifically address his needs (T:76-94). He receives all of his related services one-to-one, in addition to an OT movement group, adaptive physical education group led by the physical therapist and counseling group that works on social skills (T:91). The behavioral consultant assists the classroom staff in dealing with the Student’s challenging behaviors (T:97).

His first semester report card indicates he is making steady progress in all areas, including math, reading, science, social studies, social and behavioral skills, speech therapy, occupational therapy and physical therapy (Ex. P-D).

The Head of School submitted an affidavit, dated April, 17, 2023, that the Parent had paid $4,365 of the cost of the Student’s placement at the private school. There is an amount due of $130,610.00 (Ex. P-H).^[5]

4 The Principal testified that up to 5 minutes a day is spent in prayer (T:100-01).

CONCLUSIONS OF LAW

The Individuals with Disabilities Education Act (IDEA) provides that children with disabilities are entitled to a 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 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 (2017). If a procedural violation has occurred, relief is warranted only if the procedural violation affected the student's right to a FAPE. 8 NYCRR §200.5[4]; J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 (2d Cir. 2000).

In New York State, 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 or payment for services 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)). It is well settled that an appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]).(Application of a Child with a Disability, SRO Appeal No. 22-154).

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her 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, Massachusetts, 471 U.S. 359 [1985]; Florence County School Dist. Four v. Carter, 510 US 7 [1993]). If the District is unable to prove that it met its burden under Prong I of the three prong Burlington/Carter test, the parent in order to meet his or her burden must establish by a preponderance of the evidence, that the unilateral placement provided “educational instruction specifically designed to meet the unique needs of the student” (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 [2d. Cir. 2007]. However, the private school placement “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements” (Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d. Cr. 2006]. The private placement need not provide certified special education teachers or an IEP. Parental placements are not subject to the same mainstreaming requirements as a school district placement. The private school placement must be reasonably calculated to enable the child to receive educational benefits, and must be likely to produce progress, not regression.

The standard to apply is whether "[the] unilateral private placement ... provides educational instruction specifically designed to meet the unique needs of a handicapped child" Gagliardo, 489 F.3d at 115):

“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).

Finally, under the third prong of the Burlington/Carter test, equitable factors must weigh in the favor of the parents in order to qualify for an award of tuition reimbursement. Where parents “lack the financial resources to ‘front’ the costs of private school tuition, and in the rare instances where a private school is willing to enroll the student and take the risk that the parents will not be able to pay tuition costs – or will take years to do so- parents who satisfy Burlington factors have a right to retroactive direct tuition payment relief” (Mr. and Mrs. A. v. New York City Dept. of Educ., 769 F.Supp. 2d 403,428 [SDNY 2011]. Proof of inability to pay is not required to establish the propriety of direct retrospective payment of tuition or fees by a school district (Ferreira and Rojas v. New York City Dept. of Educ., 22 Civ 4993, 123 LRP 9785 [March 14, 2023 SDNY]).^[6]

ANALYSIS

The District did not present a case to prove that it met its obligation to provide the Student with a FAPE. Based upon the District’s failure to present evidence of an appropriate program and placement recommendation for the 2022-23 school year, I find that the District has failed to meet its burden under Prong I of the Burlington/Carter test.

Turning to the private school program selected by the Parent, the Parent argues that the selected program appropriately addressed the Student’s needs and that she has met her burden under Prong II of the Burlington/Carter test. The District did not respond to the DPC, did not present any evidence or witnesses and when given an opportunity to make a closing statement stated “I’ll rely upon your review of the transcripts and what you can glean from any cross-examination that I’ve given.” (T:146). The District has not raised any specific challenges to the private school.

The testimony provided by the Principal and Parent regarding how the private school has met the Student’s needs is uncontroverted. Based upon a thorough review of the testimony and evidence, I find the Parent met her burden that the private school provided the Student with specific individualized instruction and services to meet his unique special education needs during the 2022-23 school year. The record reflects that in addition to the small, targeted instruction he received in the classroom, he required the assistance of the 1:1 paraprofessional and the behavioral consultant. The testimony and evidence as set forth above reflects that the private school provided him with instruction, behavioral support and related services to address his difficulties with reading, math, behavior, social/skills, speech, motor and executive functioning. He demonstrated progress commensurate with his disability given his multiple educational, behavioral and social challenges.

With regard to the equities, there is no evidence in the record that the Parent thwarted the process in any meaningful way that would have otherwise prevented the CSE from making a defensible recommendation for the 2022-23 school year. The Parent gave the District timely notice of her intention to unilaterally place the Student at the private school and seek reimbursement (Ex. P-B). As such, the equitable considerations weigh in favor of the Parent, and the Parent is entitled to funding for the placement for the 2022-23 school year7.

ORDER

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

7 The record reflects that the religious component of the program was de minimis, and no deduction in funding is warranted.

1. ORDERED that the District shall within thirty (30) days of the date of this decision reimburse the Parent for tuition paid to the private school for the 2022-23 school year and pay the remainder of any amount due for the 2022-23 school year for tuition and related services to the private school directly.

SO ORDERED.

ATED: June 23, 2023

Impartial Hearing Officer

Lisa S. Rusk

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.

APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

A. Demand for Due Process 10/27/22 4 pages

B. Letter from Parent to District 08/15/22 2 pages

C. Attendance Record Letter 03/21/23 1 page

D. Semester 1 Report Card 03/31/23 1 page

E. Student’s Daily Schedule 2022-23 1 page

F. Program Description Undated 1 page

G. Tuition Contract 05/09/22 2 pages

H. Affidavit of Payment 04/16/23 1 page

I. US Individual Income Tax Return 2021 3 pages

Footnotes

[3] A more detailed list of the admitted exhibits is attached as Appendix B, “Documentation Entered Into the Record,” to this decision.

[5] A pendency agreement is in effect based upon a prior decision issued by another hearing office in October of 2022 (T:152).

[6] In any event, the Parent’s tax return indicates that she would be unable to pay the full sum of the tuition and related service expenses (see Ex. P-I).